What to Expect in Civil Mediation The civil mediation process is designed to give parties an opportunity to explore settlement options before they invest large amounts of money and other resources into litigation. Civil disputes capable of being mediated include commercial and contract disputes, libel and slander claims, real estate disputes, landlord-tenant disagreements, insurance claims, merchant-customer disputes, construction claims, estate administration disputes, wrongful dismissal claims, and many others. Although mediation of civil matters can be done voluntarily at any time, most civil mediations in Ontario occur pursuant to the Mandatory Mediation Program in Ontario's courts. Hilary Linton focuses on mediating all kinds of contract disputes, defamation claims, life and disability insurance, employment-related disputes and family business disputes. Note that Ms. Linton is no longer a roster mediator and that her rate exceed the roster rates. The following is a brief description of the steps taken in a civil mediation process. 1. Choosing the mediator. It can be very helpful to choose a mediator who understands the area of law involved, particularly if it is a very specialized practice such as defamation, franchise law, a construction dispute, or an insurance claim. (See "How to Prepare for Mediation" for more information on choosing the right mediator.) 2. Getting ready. The mediator, usually in consultation with the parties (or their lawyers if they are represented) sets the date. At least seven days before the mediation, the parties or their lawyers must send the mediator a statement of the facts of the case and the legal issues they are raising. They must include a statement of their position in the lawsuit as well as their interests ( meaning what they really want to achieve.) Any important documents as well as the pleadings in the case ( meaning the statement of claim and the statement of defence) should be attached to the statement. 3. Starting the meeting. Unlike family mediation, where the mediator first meets with parties individually to better understand their interests, civil mediators generally begin the mediation with all parties present. The mediation process is confidential, with all communication during the mediation and the mediator's file being considered without prejudice settlement discussions. Nothing that is said, provided or offered at mediation can be used in the litigation if the mediation does not result in a settlement, unless the information or document is admissible anyway in the litigation. 4. Mediator's role. Most mediations follow a similar pattern, with parties and their lawyers present. Generally the mediator speaks first, explaining the process and the ground rules. Then the parties (or sometimes their lawyers) will make an opening statement, explaining their side of the story and what they think would make a fair resolution. The mediator then helps the parties focus and narrow the issues in dispute, helps identify their underlying goals and discuss possible solutions. 5. Goal of the process. The process followed at Riverdale Mediation focuses on keeping the parties together in the same room for as much time as possible. This is a rare opportunity for opponents to meet each other and find out more about each other. The opportunities for settlement are much greater if the parties are speaking directly to each other, rather than through their lawyers or the mediator. When a party wishes to share confidential information with the mediator, then the mediator will separate the parties and meet with each separately for a brief period. 6. Separating the parties. Many mediators conducting civil mediations, however, separate the parties into two separate rooms for much if not most of the mediation session. The goal of this process is to seek out in more and perhaps more candid detail the true goals of the parties, thereby generating options for settlement more quickly. The mediator then moves between the two rooms, conducting "shuttle mediation". 7. Use of witnesses. Sometimes it is appropriate to bring witnesses or other third party experts to the mediation. The mediator must know about this in advance. 8. Reaching an agreement. If the parties find an agreeable solution, it is up to them or their lawyers to document it during or after the mediation. Mediators generally will not draw up minutes of settlement. If they do not reach an agreement in mediation, then the litigation continues. If the mediation is a mandatory mediation, the mediator will file a report with the program coordinator, stating whether the case was settled or not. • back to top