Mandatory Court-Connected Mediation

Kathryn G. Sutherland, P. Eng.

Rule 24.1 of the Ontario Rules of Civil Procedure, governing Mandatory Court-Connected Mediation was established to reduce cost and delay in litigation and facilitate the early and fair resolution of disputes. The Rule requires that a mediation session be held with a neutral third party, the Mediator, who facilitates communication among the parties to assist them in reaching a mutually acceptable resolution.

Summary

In a nutshell, the Mandatory Mediation Rule requires that:

• the mediation take place within 90 days of the filing of the first defence;
• the parties choose a mediator within 30 days of the filing of the first defence or one will be assigned by the mediation coordinator;
• at least seven days before the mediation, each party prepare a statement of issues; identifying the factual and legal issues in dispute and briefly setting out their position and interests;
• the parties attend the mediation session, with their lawyers if they are represented; and
• the person attending will either have authority to settle, or access to a person with authority to settle throughout the mediation session.

Timing of the Mediation

Mandatory Mediation is held early-on in the litigation process. When the first defence is filed (either a Notice of Intent to Defend or Statement of Defence), the Court immediately serves the parties with a Notice of Requirement to Mediate . The Notice informs the parties that mediation must take place within 90 days and that the parties have 30 days to choose a mediator or one will be assigned. The parties may, on consent, request a sixty day extension of the time to mediate. Any additional extensions require that a motion is made requesting that the Court allow the extension. If no defence is filed, the requirement to mediate is not triggered.

Choosing a Mediator

The parties can select a mediator by filing a Notice of Selection of Mediator with the mediation coordinator, confirming the name of the mediator and the date of the mediation session. If the parties do not choose a mediator or file a request for extension of time, the mediation coordinator will assign a mediator from the Roster of Mediators. The assigned mediator will immediately fix a date for the mediation session and notify the parties. Once a mediator has been assigned by the mediation coordinator, the parties must bring a motion if they wish to change mediators, and will likely be required to pay something in the way of costs.

The Mediation Session

Each party must prepare a Statement of Issues, and provide a copy to the mediator and the other parties at least seven days before the scheduled mediation session. The Statement of Issues identifies the factual and legal issues in dispute and sets out the position and interests of the party making the statement. Copies of relevant documents are attached to the Statement of Issues.

Cost of Mediation

A Roster Mediator's Fees are set by regulation, and depend on the number of parties that will be attending at the mediation session. Each party is required to pay an equal share of the mediator's fees, which cover one-half hour of preparation time for each party and up to three hours of actual mediation. The mediation can continue beyond the initial three-hour mandatory mediation period, as long as the parties agree on the mediator's fees for the additional time, which may be at the mediator's usual hourly rate rather than the lower rate set by the regulation.