Mediation Process

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Most civil and commercial mediations in Ontario follow a similar process.

Prior to the mediation

The parties usually have completed Examinations for Discovery and exchanged documents and all other relevant information as part of the Mediation Brief. They have selected the mediator. Lawyers have prepared their clients on the process, purpose, potential outcomes, and advantages of mediation well in advance of the mediation date. The timing of this last item is critical. It ensures that the clients are mentally and emotionally ready to engage in settlement negotiations and have a positive attitude towards mediation.

The mediation process over one day

Almost all mediations take place over one day and follow this outline:

  • JOINT SESSION: All parties meet together. The mediator explains the purpose of the day, how the mediation will progress, and the disadvantages and risks of taking the dispute to trial. The parties then separate for the remainder of the mediation.

  • EARLY SESSION: The mediator gives each side an opportunity to expand on its case, while asking questions and probing for weaknesses and any scope for movement. Every side needs to believe that the mediator fully understands and respects its position, autonomy, and interests.

  • LATER SESSIONS: Assuming an active style, the mediator will focus on the weaknesses of each party’s case and the relative strength of its opponent(s). He/she will also remind them of the general disadvantages of going to trial and any specific risks a trial could present (such as evidence that could damage credibility). The mediator’s job here is to get all sides on a principled basis moving in the direction of preferring settlement over trial.

  • REACHING AGREEMENT: The mediator will have an idea of the range of outcomes each party might accept and will begin “reality testing” these potential outcomes with the parties. The mediator may present ideas and possible settlement solutions as a tactic to probe for acceptability. But it is always and only the parties who will decide if they wish to settle.