Tips from Mediators

Where mediation is not mandatory, when does it make sense to mediate? When does it not make sense?  What is your experience as to the success rate of mandatory vs. Voluntary mediations?

Percy Ostroff

In my mediation practice, which focuses on commercial disputes, mediation always makes sense, whether it is mandatory or not.  Once brought into the civil litigation process, many commercial disputes are subject to mandatory mediation. However, not all are, and not all commercial disputants want to use the civil courts to adjudicate their issues in every case.

​In my experience, parties who voluntarily agree to bring their dispute to mediation when it is not required are in the proper mindset to negotiate freely and openly and are primed with the bona fide goal of reaching a settlement. This bodes well for a successful mediation.

With the enacting of Ontario’s Commercial Mediation Act (CMA) in 2010, mediating commercial disputes when mediation is not mandatory is now even more effective and efficient. The CMA sets out the parameters for commencing and conducting a commercial mediation. Importantly, it enables a party to enforce any mediated settlement as a judgment of the Superior Court of Justice.

For these reasons, mediating a commercial dispute when it is not mandatory always makes sense if the parties are ready, willing and able to mediate.

Steven C. Gaon, B.A., J.D., C. Med.

I have handled many cases where mediation is not mandatory. It is a fairly common practice these days. Mediation has taken on a prominent role in modern dispute resolution because of how well-known it has become and because of its effectiveness in getting matters settled at a low cost. Construction disputes, employment matters, commercial cases and will/estate conflicts, among others, are often mediated in the absence of a rule or contractual clause compelling the parties to mediate.

These cases come to non-mandatory mediation for a variety of reasons, including:

• Where the facts and issues are straightforward and the amount of money in dispute is modest. Lawyers handling these cases often see that it makes little sense to spend dollars on legal fees that could be put toward a settlement, so they recommend mediating before litigation.
• Many jurisdictions do not have mandatory mediation – so lawyers will recommend mediation after litigation has been commenced (again, because it makes practical sense to do so).
• Where there is a non-monetary dispute and litigation would not normally be a route to bring closure to the dispute (e.g., a workplace conflict).

In my experience, the success rate is very high for non-mandatory mediations. This is because the parties are often motivated to settle. They often come in with a positive attitude and are quite resolution-oriented, not having been compelled to mediate.

Rick Brooks

It always makes sense to mediate. The vast majority of cases settle at some point prior to the trial, or in fact prior to the completion of the trial. The later a case settles, the higher the costs. High costs can become an impediment to settlement but, even if settlement is achieved, those costs may not be recovered. Mediation makes sense in every case but the timing of the mediation is very important.

Mediations often fail because the parties do not have the sufficient knowledge base to assess their risk of proceeding further with the case.

Accordingly, whether it is a mandatory mediation or voluntary mediation, the timing of the session is critical.  It does not make sense to mediate until you fully understand your case, warts and all.  

In complex matters, early mediation, whether voluntary or mandatory, is usually unsuccessful. In those cases the parties would be better off mediating subsequent to production and discovery. Also, the client may not be ready to settle at too early a stage and so, again, timing is critical.