Mediation in a lawsuit is common practice throughout Ontario. Whether a case is a family law case or a civil law case, mediation is often helpful. It is different from a pre-trial conference which is a mandatory settlement conference held before a judge with the lawyers representing the parties, and usually without the parties present. A mediation is an alternative dispute resolution session, commonly called an ADR session. It is a private settlement conference between the parties and their lawyers that takes place on consent of the parties in the dispute.
There are many businesses specializing in mediation services. The mediators are usually lawyers who have taken special courses in mediation. There are also retired judges who offer mediation services. Some mediators are known for their expertise in a particular area of the law, such as real estate or family law. The mediator is a neutral facilitator who will assist the parties in reaching their own settlement. The mediator does not provide an assessment of the merits of the issues in dispute unless requested to do so by all parties. He or she never offers legal advice since each party at the mediation has a lawyer present. However, the focus is not always on the legalities of the lawsuit and the parties are expected to take an active role in the mediation.
In order for a mediation to work, open and honest communications are essential. To encourage such communications, the parties and their lawyers are required to sign an agreement stating that all negotiations, documents submitted, and statements made in the course of the mediation are absolutely privileged, confidential, and without prejudice. If the mediation fails to settle the dispute, the parties must prove their claim and defence independent of the communications made in the course of the mediation.
A mediation brief is submitted by each party before the mediation. The mediation itself usually begins with a general round table discussion before the mediator. The parties may then break off into separate groups in different meeting rooms with the mediator, and later resume with a general meeting. The cost of a mediation for one-half a day can be in the neighbourhood of $750.00 for the mediator’s fees and board room facilities, shared equally between the parties. The cost is often worth the effort whether settlement is reached or not.