Canada: Navigating Through Challenging Mediations: Creating Value In The Midst Of Obstacles

Introduction

Mediation is a process in which a neutral third party assists the disputing parties in reaching a mutually acceptable resolution. Mediation is designed to be a confidential and voluntary process, free of the formality and adversarial nature of court proceedings. Due to the benefits that the mediation process has yielded, Rule 24.1 of the Rules of Civil Procedure enforces mandatory mediation in Toronto, Windsor, and Ottawa in certain civil actions, in addition to contested estates, trusts, and substitute decision matters under Rule 75.1. Mediation in Ontario has generally had a high rate of success among parties. According to the statistics compiled by Ontario's Ministry of the Attorney General, approximately 90% of cases are settled prior to trial.

There are however multiple reasons why a matter will not resolve at mediation. Among them are (1) the late service of expert reports or (2) the defendant's insurer taking a no-liability or defensible position, which may result in the insurer being unprepared to make a settlement offer at mediation. With respect to the former, it is common for insurers to have internal discussions, sometimes weeks before mediation, regarding the settlement authority for a particular matter, resulting in a decision being made on the amount of settlement authority to be afforded to the individual attending mediation. As a result, expert reports served days before the mediation by the plaintiff will not be accounted for during this assessment and very often sets up the mediation for failure. Therefore, timely service of expert reports is essential to enable the defendant to fully know the plaintiff's case and make a fully informed decision regarding its settlement position.

With respect to the latter, if the insurer is simply not prepared to make a settlement offer, the value of mediation will lie in trying to narrow and/or resolve some of the issues, better understand the parties' respective positions, and most importantly, allow the claims examiner to make their own assessment of the plaintiff regarding presentation and credibility in order to evaluate how the plaintiff will be perceived at trial.

Reason (3) as to why mediation may not result in settlement is simply the respective parties fundamentally disagree on the settlement value of the claim, with the result that the settlement authority provided to the claims examiner is insufficient to resolve the matter. While the settlement authority may be viewed as inadequate, it is more appropriately a reflection of the differing views of the claim. The claims examiner's ability to meet and assess the plaintiff for the first time, in addition to the capability of plaintiff's counsel, may prompt a modified settlement position following mediation. When mediation fails to settle the matter, both the claims examiner and his or her counsel will report to their supervisors regarding the outcome of the mediation and the process itself. What has been learned at the mediation about the other party's case may very well influence a settlement position going forward, which is true of both the defence and plaintiff sides.

Mediation is mandatory – Settlementis not

Rule 3.2-4 of the Rules of Professional Conduct obligates a lawyer to advise and encourage the client to compromise or settle a dispute whenever possible on a reasonable basis. Furthermore, when dealing with motor vehicle cases pursuant to section 258.6 of the Insurance Act (the "Act"), an insurer is obligated to participate in mediation when requested. Section 258.5(1) of the Act further stipulates that the insurer must attempt to settle the claim as expeditiously as possible.

This Ontario Court of Appeal's decision... is key in highlighting the interplay between the legislation and a party's duty at mediation.

The Ontario Court of Appeal's decision in Ross v Bacchus, 2015 ONCA 347, is key in highlighting the interplay between the legislation and a party's duty at mediation. In this personal injury case, the defendant's insurer had agreed to attend mediation but advised at the mediation itself that it was not interested in settling the case. Consequently, the trial judge ordered an additional $60,000 in costs due to the insurer's apparent failure to comply with its obligations to settle expeditiously under the Act. However, on appeal, the Court overturned the trial judge's cost award, highlighting the fact that settlement is not mandatory in order to meaningfully participate in the process. The Court stated that an insurer who participates in mediation cannot be declared to have failed to participate simply because the insurer indicated prior to mediation that it was not prepared to settle.

It is important to keep in mind that although mediation is mandatory in jurisdictions such as Toronto, settlement is not. The goal of mediation is to provide the parties with an opportunity at an early stage in the litigation process to discuss the issues in dispute. As a result, the Act may reasonably be interpreted to suggest that hard-nosed bargaining in order to dissuade a plaintiff from proceeding to trial may be acceptable, contingent on the insurer making genuine efforts to resolve the issues. One may also infer that this demonstrates settlement is not necessarily the ultimate goal of mediation. Rather, the purpose of mediation is to facilitate a faster resolution, which may involve the parties making good faith efforts to gain a better understanding of the issues and the parties' respective positions.

Benefits of the Mediation Process

Although mediation may not always result in settlement, there are several benefits the process can offer disputing parties.

1. Informality and Flexibility

Mediation is an informal procedure that is not bound by the procedural requirements of trial proceedings. It is also a much faster and less expensive process. Mediations are almost always completed in a day, in contrast to the years it may take to resolve a case at trial. Unlike the adjudication process, there are no procedural limits to the number of parties participating, the location, and the types of disputes involved. Mediation is more informal than adjudication since it encourages direct participation by the disputing parties. During mediation, the parties have ownership and control of the process and agree on a mutually acceptable resolution, unlike litigation where a court or an unpredictable jury imposes a judgment on the parties that is binding. The mediator simply acts as a moderator and does not have the power to make decisions about the relevancy of issues or information. Mediation is a private process and the public does not learn about either the process or the outcome. Thus, mediation provides an open and safe environment, where parties can express their needs and wants in a non-adversarial space.

2. Personalized Process

Another benefit of mediation is that the disputants are encouraged to participate directly in the process. In litigation, rules govern the types of questions that are asked and thus result in structured answers from witnesses. However, during mediation, there are no restraints on the parties' ability to express their goals and concerns. People often listen better once they feel their positions have been heard and understood. Mediation can facilitate reaching an understanding of the parties' positions on the issues, which may result in future settlement.

In addition, mediation very often is the first instance where the claims representative is meeting the plaintiff. Mediation provides an opportunity for the claim representative, who is the true "decision maker", to evaluate the claimant's credibility and demeanour, which will allow them to develop their own assessment of the plaintiff. With all of the parties in attendance at mediation, counsel is afforded the opportunity to "size up" the parties, and their counsel with respect to the effectiveness of their submissions, opening remarks, and how counsel will likely present at trial.

3. Refining the Scope of the Issues

Disputants may set the groundwork for a future settlement by discussing the issues and possible outcomes at mediation. Cases that have gone through mediation without achieving a settlement are more likely to settle earlier than cases that did not go through the process. Even if the insurance representative does not view the settlement value of a claim similarly to the plaintiff, mediation can be a highly useful process to clarify positions and understand one another's interpretation of the law or the facts at issue. The parties may be able to agree on one or more elements of the overall dispute, such as the quantum of damages or issues regarding liability. Regardless of whether mediation results in settlement, resolving any portion of a dispute will save the parties a great deal of expense and time going forward.

4. Choosing an Experienced and KnowledgeableMediator

Although the disputants retain a high degree of control over the mediation, the mediator can have a significant impact on the outcome of the process. A mediator provides a neutral, third-party perspective, which can assist the parties in breaking down complex issues and evaluating the strengths and weaknesses of their respective case. Thus, a crucial step in ensuring mediation is successful is the parties' selection of an appropriate mediator. Counsel and the parties should consider and research the mediator's experience in the subject matter of the dispute. Although it may be appealing to hire an inexpensive mediator, the parties should keep in mind the significant value an experienced mediator with expertise in a certain area of law can bring to the mediation. An experienced mediator is able to encourage the parties to re-evaluate extreme positions, test their respective positions, provide them with real-life parallels to their conflict, and assist them in making informed decisions – all of which increase the likelihood of achieving settlement or minimizing the time and cost to resolve some or all of the issues.

Conclusion

Mediation is a highly beneficial tool in the litigation process even when faced with obstacles hindering or preventing settlement. It is important to keep in mind that mediation can provide several benefits apart from settlement, which can ultimately facilitate a quicker resolution of the case. Actively embracing the mediation process can allow the parties to gain a better understanding of the case, re-evaluate their positions, refine the scope of the issues, and hear (and hopefully consider) the perspective of a neutral third-party – the experienced mediator.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Macdonald Sager Manis LLP
Rogers Partners LLP
Strigberger Brown Armstrong LLP
Norton Rose Fulbright Canada LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Macdonald Sager Manis LLP
Rogers Partners LLP
Strigberger Brown Armstrong LLP
Norton Rose Fulbright Canada LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions