Mediation is an opportunity for people in legal disputes to discuss their circumstances and try to reach a settlement. This is done in the presence of an independent and impartial, trained mediator. Mediation is an efficient option to reach a resolution of existing and threatened litigation because it is cheaper and quicker than going before a judge. For this reason, it is especially common in employment law matters. In Toronto (as well as Ottawa and Windsor), mediation is a mandatory process for most civil cases.
Usually, the parties will try to work with the opposing lawyers to find a mediator on which they mutually agree, and reaching this consensus is typically successful. Toronto has many experienced employment law mediators to choose from. However, if unsuccessful, the court has a "roster" of approved mediators from which one will be chosen and appointed for mediation.
The mediator cannot force a settlement or provide legal advice to either of the parties. Nonetheless, the mediation process has proven to be a successful tool in resolving employment law disputes, usually at relatively early stages of the case (when legal costs are low).
It is important, and at times mandatory, to have all relevant documents exchanged between the parties before prior to the date of mediation. Such documents may include the following: documents detailing the plaintiff's job search in the case of wrongful dismissal, the termination letter, supporting performance materials (if performance is a matter of dispute), and any other documents relevant to the issues in the case. Your mediator can help you decide which documents needs to be shared.
Should the case be resolved during the mediation, then the parties must sign a minutes of settlement. Where settlement funds are required by the agreement, payment is usually made within the following 2-3 weeks. In addition, a 'general release' will also have to be signed (a document that states release from any and all known and unknown claims). Future wrongdoings are not covered by the general release form. Employee plaintiffs also often request a reference letter as a term of settlement, which if given, becomes a covenant of the agreement. The letter must be in accordance with the minutes and will not allow the common law defence of 'fair comment', i.e. the right to make an inaccurate comment about the employee's performance even if that comment is an honest opinion.
Confidentiality and Privilege
The discussions during the mediation must not be repeated to anyone not directly involved in the matter – this is governed by the mediation agreement. A breach of this confidentiality (and thus a breach of the covenant) can lead to a number of additional legal disputes.
'Settlement privilege' is similar to confidentiality, and is often one of the most important terms to which the parties will agree. All settlement related discussions (if a settlement was reached) must also be kept private. The purpose of this rule is to allow the parties to make open and honest statements and requests to help reach a resolution promptly.
Formal offers to settle are governed by Rule 49 of the Ontario Rules of Civil Procedure. Additionally, Rule 49 advances a certain benefit to incentivize parties to settle: a party who makes an offer to settle may (if technical procedures are followed) receive a cost award.
Settlement privilege, and privilege more generally, is not a guarantee and can be overlooked in exceptional circumstances. As mediation lawyers, we guide our clients through the mediation process and inform which statements and circumstances may be such exceptions. For example, threats, fraud, and misrepresentation – and anything else that may be against public policy – are typically not protected by privilege.
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.