When does mediation take place?
Parties are encouraged to seek the Court's assistance at any time to pursue alternative dispute resolution. The Court will also proactively raise these options throughout the proceeding, including at those junctures where it would lead to the most efficient and cost-effective disposition of the action, such as the close of pleadings, or immediately following documentary production or oral discoveries, and even at the pre-trial conference. The party or the parties wishing to initiate mediation should seek a case conference with their Case Management Judge or, if the matter is not case managed, request the hearings co-ordinator to set a date for mediation.
After filing the Statement of Claim and the Statement of Defence, the Court strongly recommends that the parties discuss the possibility of mediation during the requisite settlement discussion period pursuant to Rule 257. The parties should also discuss the opportunity of having the case specially managed pursuant to Rule 383. Case management is a system designed to reduce unnecessary delay and cost, facilitate early and fair settlements, and bring cases promptly to a just conclusion. The Case Management Judge or prothonotary will help the parties determine the opportune time to have a meaningful mediation.
Even after there is a settlement, if other items come into dispute, a new mediation can be scheduled without affecting the prior settled items.
How does mediation work? Although mediation is an informal process, the mediator usually structures the discussion. All parties have a chance to present their side of the story, to explain what is important to them and to ask questions of the other side. The mediator will help the parties to explore settlement options. The mediator may meet separately with each of the parties either before the session begins or during the session.
Where will mediation take place? The mediation will generally be held in person at the Court facilities. Mediation can also take place over the phone or by videoconference if the parties cannot attend in person. However, mediation is an opportunity for the parties to speak to each other directly and attendance in person is strongly encouraged.
How long will mediation last? The time required to mediate a dispute varies according to the complexity of the dispute. Mediators can adjust to differences and mediate at a pace comfortable to all parties. A mediation session is often a day or less. It is not uncommon in more complex proceedings for mediations to continue over several sessions before a resolution can be reached.
Who should attend the mediation? All parties and their counsel must attend the mediation session. Parties must have proper authority to settle the dispute. Usually, mediators require the presence of a party and discourage lawyers from attending in the place of a party unless they have full authority from the client to resolve the dispute.
What happens if an agreement is reached? Agreements resolving some or all of the issues in dispute must be in writing and signed by the parties. If the agreement settles the case, a party will file a notice of settlement, a notice of discontinuance or seek an order dismissing the proceeding usually without costs (depending on the terms of the settlement agreed to by the parties). Agreements reached at a mediation are legally binding.
What happens if an agreement is not reached? A mediation is considered successful even if the parties do not settle but gain a better understanding of the other side's position, if they have narrowed the issues or settled some of the issues, or if they have agreed on a process to resolve issues later in the proceedings. Mediation can be reconvened at any time if the parties are agreeable to it. In the absence of a full settlement, the case will continue through the usual procedural steps to the trial or hearing.