In Ontario, Rule 24.1 of the Ontario Rules of Civil Procedure, governs the Mandatory Court-Connected Mediation process for proceedings commenced in Ontario. This rule was established to reduce cost and delay in litigation and facilitate the early and fair resolution of disputes.
Rule 24.1 of the Ontario Rules of Civil Procedure establishes mandatory mediation for case managed civil, non-family actions. Rules 24.1 and 75.1 apply in Toronto, Ottawa and Windsor. Rule 75.1 brings contested estates, trusts and substitute decisions matters within mandatory mediation.
Rule 24.1 requires the parties to hold a mediation session with a neutral third party (the mediator), who will assist in and facilitate communication among the parties. The goal of mediation is to reach a mutually satisfactorily resolution of the issues and avoid the cost of litigation. The mediator helps the disputing parties look for a solution that works for them.
Mediators, unlike judges, do not decide cases or impose settlements. The mediator helps the parties communicate and negotiate with each other in a constructive manner, gain a better understanding of the interests of all parties, and find a resolution based on common understanding and mutual agreement.
Under the mandatory mediation program, cases are referred to mediation early in the process, giving parties an opportunity to discuss the issues in dispute. The parties, with the assistance of a trained mediator, explore settlement options and may be able to avoid the pretrial and trial process.
Cost of Mediation
The 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.
The current Court Connected Roster Mediator's Fees are as follows:
Number of Parties Maximum Fees
2 $600 plus GST
3 $675 plus GST
4 $750 plus GST
5 or more $825 plus GST
After the initial three (3) hour session, our mediator=s hourly rate is $275.00.
Summary of Rule 24.1
In summary, the Mandatory Mediation Rule requires the parties to complete several tasks:
- the mediation take place within 90 days of the filing of the first defence;
- the parties must choose a mediator within 30 days of the filing of the first defence or one will be assigned by the Court (local mediation coordinator);
- at least 7 days before the mediation session is scheduled, each party must serve a statement of issues (which is a document summarizing the factual and legal issues in dispute). The statement of issues must also set out the party=s position on the issues and attach relevant documents;
- the parties must physically attend the mediation session with their lawyers if they are represented and without a lawyer if not represented. A lawyer may not attend in place of the party; and
- for the mediation to proceed, parties must have authority to settle the case or have ready telephone access to anyone whose approval is needed to settle during all stages of the mediation session. If a corporation, partnership or other organization is a claimant or a defendant, it should be represented by an individual who is authorized to make a decision on its behalf.
Timing of the Mediation
The aim of mediation is to allow the parties an opportunity to settle the case as soon as possible after a court proceeding has been commenced. The time-line starts rolling as soon as a defendant files either a Notice of Intent to Defend or a Statement of Defence. The triggering event is the filing of either a Notice of Intent to Defend or a Statement of Defence.
When either a Notice of Intent to Defend or a Statement of Defence is filed, 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 by the Court.
If required, the parties may, on consent, request a 60 day extension of the time to attend mediation which is usually obtained with a case conference notice. Any additional extensions must be obtained by motion to the Court who will consider the merits of he request and makes an Order. Extensions of time are routinely granted.
Choosing a Mediator
The parties 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 Ontario 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
The mediation may be held anywhere that is acceptable to the parties, such as the mediator's office, the office of any party or their lawyer, or at the court facilities.
Each party must prepare a Statement of Issues (often called a Mediation Brief by lawyers) and serve a copy upon the mediator and all other parties at least 7 days before the scheduled mediation session.
As stated, the purpose of the Statement of Issues is to (a) identify the factual and legal issues in dispute; (b) set out the party=s position on the issues; (c) set out the party=s interests; and (d) attach copies of all relevant documents. The Statement of Issues is never filed with the Court.
Length of Mediation Session
The mandatory mediation program provides for a mediation session of up to 3 hours. Of course, the mediator may end the mediation before that time if the case settles or if he or she concludes that the process is not constructive for the parties.
If the mediation is not concluded within 3 hours, the mediator may, with the consent of all parties, continue the session or arrange for additional sessions.
Agreements Reached at Mediation
Agreements resolving some or all of the issues in dispute must be in writing and signed by the parties or their lawyers.
If the parties settle the case, the defendant must file a notice with the court advising of the settlement within 10 days of the agreement being signed (or in the case of a conditional agreement within 10 days of the condition being satisfied).
Agreements reached at mediation are legally binding. If a party fails to comply with a signed agreement, any other party to the agreement may bring a motion for judgment under the terms of the agreement or continue the legal proceedings as if there had been no agreement.
Note: The information provided on this page is based largely on the information posted on the Attorney General=s web site: www.attorneygeneral.jus.gov.on.ca.
