Accounting for Law
Mediation

Rule change means earlier mediation

Toronto mediator and settlement counsel Mitchell Rose says recent changes to the local mandatory mediation procedure will lead to earlier resolutions for many litigants.

Since May 1, no civil action requiring mediation in Toronto can be set down for trial without the filing of a certificate confirming that a session has taken place before a mediator, as a result of amendments to paragraph 57 of the Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region.

Previously, parties whose cases are subject to Rule 24.1 of the Ontario Rules of Civil Procedure were able to get their matters on the trial list simply by scheduling a mediation.

Rose, partner with Stancer Gossin Rose LLP, tells AdvocateDaily.com he welcomes the move because it will encourage parties to go through mediation at an earlier stage than they may have otherwise.   

“This change is a good one because by moving to mediation earlier, it means cases will settle earlier,” he says.

According to Rose, the changes are likely to have an uneven impact, depending on the types of action involved.

For example, he says personal injury lawyers are likely to notice the biggest difference, since their mediations traditionally occur late in the process, long after examinations for discovery.

The trend in wrongful dismissal cases, meanwhile, is for mediation to occur earlier, Rose, says, noting that it often happens soon after the close of pleadings.

In an ideal world, he says parties to civil actions would turn their minds to mediation even earlier in the process.

“I would argue that it’s a good idea to have a mediation before an action is even commenced,” Rose says.

He says he understands concerns that, with trials currently being booked one or two years in advance, the new Toronto rule will put more distance between mediations and trials. However, he says the benefits outweigh the drawbacks.   

“You certainly don’t want to put up more of a barrier for people who want to get to court, but if there’s a chance cases can settle earlier, then it’s going to reduce the amount of litigation,” Rose says. “If they can’t settle, then by all means, get them to court quickly, assuming they’ve tried everything else.” 

Still, Rose says parties should think twice before rejecting the opportunity to resolve a case without going to court. In a recent blog post, he listed six reasons to settle:

1. RISK

There are no “slam-dunks”. Every case is risky. If you can’t accept that your case, or any part of it, is too strong to fail then at least accept that sometimes (just sometimes) the judge or jury “gets it wrong”.  Therefore, even if you are certain, lawsuits are inherently uncertain. Settling on terms which are short of your (and the other side’s) best-case scenario is rational since: a) A 3rd party decision maker is taken out of the equation, leaving those who know their own case best to craft the outcome, and b) No one suffers their worst-case scenario at Court.

2. TIME

Most cases typically move slowly toward their Day in Court – although that “day” is often, in reality, several days or even weeks. Instead, settling a case usually results in no further (or much more) time being spent by the participants. Settling early will result in the greatest time savings.

3. COST

No matter how your case is funded, there is always a cost.  Even if you are not paying your own legal fees, or you hired a lawyer on contingency, there are still monetary and non-monetary costs (i.e., time that could be spent on work, with family or friends, or anything better than litigating). If you lose, the Court may order you to pay the other side’s legal costs. By settling, you control monetary and non-monetary costs, thereby avoiding unpleasant surprises.

4. PRIVACY

Courts are public. Thus, Court decisions, and the reasons for them and the persons involved, are made public. Thus, they are usually, and permanently, on the internet for the world to see. Settlements are typically private. Strangers rarely, if ever, know the settlement terms. As well, parties to a settlement normally do not acknowledge any liability, even if payments are made.

5. CREATIVITY

In many cases there are freely agreed-upon settlement terms, which a Court could never order. For example: Apologies, reference letters, favourable (and legal) tax treatment of settlement funds, releases, payments to charity, and many other creative ways to resolve disputes.

6. FINALITY

Finally, Court decisions are often appealed to higher Courts. Some appeals are successful, while some are not (but, see all the reasons above as they apply to appeals too). Settlements are different: They are, typically, final, binding agreements and not subject to appeal.

To Read More Mitchell Rose Posts Click Here
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