Preparing for Mandatory Mediation

Murray H. Miskin

October 2002

The following paper was revised in October 2003.  Please refer to the revised paper which you may read by clicking here. 

       Mediation is a negotiation process where the parties to a dispute with the assistance of a neutral disinterested person try to settle their dispute.  The mediator assists the parties by having an independent perspective on the issues and by helping the parties focus on areas where there may be common ground or a basis for reasonable compromise.  Over the past several years mediation has become a popular choice in litigation and is usually very effective in settling cases.

Typically parties choose to mediate when a case is ripe for settlement.  That often is just before trial or other major and costly steps are to be taken and after there is sufficient disclosure for parties to understand risks and choose to go through a process that could facilitate settlement.  At this stage parties often pay large sums to mediators who may be retired Judges, senior counsel, or leading private mediators.  They spend a great deal of time in preparation knowing the event to be a significant to both parties who usually hope to settle at the mediation.   Early mediation is rarely selected voluntarily because of the lack of knowledge by counsel of the new file and the reduced sense of urgency with a case that is at an early stage.  Early mediation has been forced upon us as part of the case management process and the results so far indicate it can be a very effective process.

     In civil actions commenced in Toronto (with some exceptions), mediation at an early stage is mandatory.  This is something new to most litigators whose experience is with a court process, which includes a long discovery stage after the pleadings are completed.  Usually settlement is not looked at seriously until the lawyers know the case in great detail after the follow up to discovery questions and concerns.   Before discovery most lawyers have not yet taken the time to carefully study and consider the issues in the case enough to look at settlement terms and options.

     By institutionalizing mediation with Rule 24.1 to take place before discovery the court forced lawyers to better understand their cases early with a view towards ending them early.  Rule 24.1 came into effect in the year 1999 and was extended in July 2001 to cover all Toronto civil actions rather than just a small randomly selected sampling. After a year and a half of 100% mandatory mediation most Toronto litigators have come to accept the process.  The manner in which cases are prepared within law offices has been forced to change to consider the impact made by early mandatory mediation.

     Mandatory Mediation is part of the case management process, which has placed greater court control over the progress of civil actions.  Strict timetables are now enforced by case management Masters.  The Masters are reluctant to grant exceptions that would slow the process.  Rule 24.1.06 provides for the Attorney General to designate a person as Mediation coordinator in each Judicial District to administer mediations under the Rule.  Local Mediation Committees established under Rule 24.1.07 are responsible for the appointment of mediators in their area and monitoring their performance.

     Within 30 days of the filing of the first defence the plaintiff is required by Rule 24.1.09 (5) to file a notice with the court advising of the name of a person chosen to be mediator selected by the parties on consent.  If this is not done the mediation coordinator then is to immediately assign a mediator from the court's list or roster of mediators under Rule 24.1.09 (6).  That mediator is obliged under Rule 24.1.09 (10) to set a date for mediation to take place within 90 days of the filing of the first defence. With less than 60 days remaining a mediator is assigned from the court’s roster and required to contact the parties to advise them and to ensure that mediation is scheduled.  The court appointed mediator is required with or without agreement to fix a date within approximately one month from being appointed.  The mediator is required to serve a notice at least 20 days before the mediation.  This gives the mediator very little time to wait for a response from the parties to an initial letter.  Often the mediator phones the offices of non-responsive counsel.  Attempts are made to arrange a consent mediation date and time before having to arbitrarily set a date so as to be in compliance.  Recently all roster mediators were sent a notice from the court confirming their obligation to strictly adhere to the time limits.

     Each party is required by Rule 24.1.10 (1) to prepare a statement of issues and serve it on the other party and the mediator at least 7 days prior to the mediation.  Plaintiff's counsel is to include with the statement a full set of pleadings for the mediator. It is useful to the mediator to be sent pleadings sooner so they will have some knowledge of the case beyond what is contained in the notice appointing them.  If a party fails to comply by providing the statement of issues in time the mediator is required by Rule 24.1.10 (5) to cancel the session and file a certificate of non-compliance with the mediation coordinator.  The parties and their lawyers are required by Rule 24.1.11 to attend the mediation session and have authority to settle or telephone access to a person who has such authority.  It is understand that in cases defended pursuant to liability insurance policies it is an Insurance Company representative who is required to attend not the named defendant. If someone essential fails to attend within 30 minutes of the scheduled start time the mediator is required under Rule 24.1.12 to file a certificate of non-compliance with the mediation coordinator.  Mediators have used their discretion and been lax in filing certificates on non-compliance but again have recently been encouraged to strictly follow the rules more.  Where a certificate of non-compliance is filed the mediation coordinator is required by Rule 24.1.13 to refer the matter to a case management master or judge who may choose to schedule a case conference.  At the case conference there is power to dismiss a claim, strike out a pleading, schedule further steps or make other orders that may be just including costs orders.

    When mediation takes place Rule 24.1.14 deems all communications and the mediator's notes to be without prejudice settlement discussions.  According no confidentiality or other agreements need to be signed at the mediation before it begins. Some mediators try to get parties to sign such agreements but there is no obligation to agree on any mediation agreement.  Often the mediators will draw up these agreements hoping to better protect their fees and protect themselves from liability claims arising from the mediation.  All mediators are required to be insured by insurance similar to lawyers’ errors and omissions insurance.  Premiums are very low and claims under the mediation policy are rare.  After mediation is held the mediator must by Rule 24.1.15 file a report within 10 days on the outcome of the mediation.  The report sets out the dates of the mediation sessions and whether some, all or none of the issues are settled. If the mediation session ends with an offer or proposal that will be considered over the next few days it is important to report back to the mediator immediately when you know if there will be settlement.  Most mediators would be happy to make a call or two to help get a settlement after the mediation session.

    The above rules for the process place tight restrictions and time limits, which require counsel to take quick steps in dealing with mediation.  On consent the parties may under Rule 24.1.09 (3) extend the date for holding mediation up to 60 days.  This is often necessary due to busy schedules and conflict dates between counsel and the parties.  As well popular selected mediators tend to be booked months ahead of time.  To further extend or even avoid mediation requires a motion and even with consent the relief sought is not likely to be granted unless one can show exceptional circumstances justifying delay.  There has been a trend recently of allowing more extension so that discoveries can be held first if considered necessary to hopes for successful mediation by counsel

     In actions with more than one defendant it is common to have a problem despite best efforts agreeing on a mediator within the 30-day time limit.  This is both because of the need for more parties to agree and more importantly because there may not be service of the claim let alone appointment of counsel on behalf of more than one defendant.  It becomes important to serve the claim on all parties at the same time and not hold back on ones considered less significant to the proceedings.  Where a waiver of defence has been given to follow service and it is withdrawn it should be for all parties at the same time.  Until a defence has been filed the setting of mediation deadline is not triggered.

     Be ready to put forward names of suggested mediators to opposing counsel or respond to suggestions by the other party quickly.  This means you should have available to you for ready access a data base of information on all roster mediators and also some non-roster mediators whom you may find more appropriate although more costly in some cases.  It is only with consent that a non-roster mediator may be selected.  Roster mediators are restricted by tariff to a fee of $150 per hour, which in many cases is a bargain.   There are few roster mediators who usually charge less than the $150 tariff maximum hourly rate.  Non-roster mediators when selected usually charge at least $100 to $200 per hour more.  A mediator on the roster who normally charges a higher hourly rate is obliged to charge no more than the tariff when conducting mandatory mediations.  Some get around this by booking over three hours and charging a much higher rate for the fourth and subsequent hours.  All roster mediators are looking for work and would be very happy to send you on request their resumes or other biographical information.  You can begin by looking at and copying Mediator ads in the Ontario Reports and other publications.  Reviewing your firm's incoming "junk mail" can yield a treasure trove of information about mediators seeking work.  Some mediators are in very high demand or severely restrict their availability thus making scheduling difficult.  That should be noted in your database particularly given the time limits for completing the mediation.  As a first step an up-to-date list of the Toronto Roster may be found at the attorney general's website: http://www.attorneygeneral.jus.gov.on.ca/html/MANMED/torontorosterofmediators.htm.  For Ottawa it is the same long name except substitute Ottawa for Toronto.  Mandatory mediation will be extended to Windsor in January 2003 with a new roster to be set up for that area.  The Attorney General’s website- will give you a complete list of about 600 names for Toronto (less for Ottawa) but only provides phone and fax numbers with email addresses but no other information except a notation if the person is bilingual.    Many of those roster mediators are members of the ADR Institute of Canada (formerly the Arbitration and Mediation Institute), which has a search engine to locate a suitable mediator on its website http://www.adrcanada.ca    Both this national and the Ontario website http://www.amio.org have information on ADR issues.  At the provincial website you can specifically locate a list of members who are on the court roster and those who have attained the designation of Chartered Mediator.  Quicklaw has a database of roster mediators and their biographies, which you can search but it has not been kept up to date.  Experiences within your firm from mediations should be noted and put in a firm database for access when considering whether to select a particular mediator.  A mediator does not have to be a lawyer and depending on your case it may be suited to a non-lawyer mediator.  Many lawyers are surprised by the great skill of some of the lesser-known non-lawyer roster mediators but experiences with such mediators are mixed.  Most non-lawyer mediators spend a great deal of time in preparation and research legal issues so they are very well prepared for the mediation.  Less than half of the mediators on the roster are lawyers and as expected it is harder to find available dates for the practicing lawyers who also act as roster mediators.

     It is worthwhile to add to your database information on all of the roster mediators in order to respond to suggestions from the other party and also to know what to expect if you have a mediator appointed by the court.  Roster mediators come from a wide variety of occupations, experiences and orientations.  There is a classic story of a mediator who lit candles at the mediation and asked the parties to hold hands.  I think the same person who started the rumour of the snake loose in a K Mart Store invented this story.   When a mediator is appointed you are subject to the luck of the draw.  Usually if the parties find someone has been appointed whom they consider unsuitable that person would agree to withdraw and be replaced by one then appointed on consent.  This type of step is not contemplated in the rules but can go smoothly if steps are taken very quickly after the mediator is appointed and before further steps are taken.  The Master must approve any change of mediators.  As soon as you hear from an appointed mediator you should quickly take steps towards bringing a motion if you want to change mediators on consent.  Without consent change is not likely to occur.  The appointed mediator is not allowed to wait for you to bring an intended motion before they proceed to schedule the mediation.

If you want to select your own mediator you should have it done quickly.  The agreement on a mediator's appointment to a case should be relayed to the coordinator within 30 days of the first defence being filed to avoid the complications and perhaps undesirable consequences of a mediator being randomly or alphabetically appointed.  A letter to opposing counsel proposing a mediation plan and selection of a mediator prior to filing a defence is a good way to keep in control of the process.  If you have ready and send out a list of three or more proposed mediators to opposing counsel you are likely to get agreement on one of them.

     As a roster mediator I ask you to have compassion or pity for those who have agreed to be roster mediators.  In many ways it is not worthwhile and does not make business sense for an otherwise successful lawyer or other professional to accept roster work.  Enormous work including calls and letters is done to schedule the mediations, chase lawyers for mediator retainers and fees and otherwise do the administration required of the mediator.  Often the mediator is dragged into preliminary problems and issues in the case, which need to be addressed before the mediation takes place.  I have received excessive copying to me of letters about various issues in some instances and in others have had no knowledge of what was going on so that I had to chase down counsel to find out why the scheduling was not proceeding.  There is a reasonable balance between flooding mediators with preliminary correspondence and leaving the mediator in the dark and I encourage you to strike that balance.   The pay of the mediator at $150 per hour covers one hour of preparation, which the mediator would like to spend reading, and considering pleadings and statements of issues.  There is no budgeted pay for the mediator to do the administrative pre-mediation work.  Where there are more than two parties the total pay to the mediator goes up by $75 per additional party mainly because more reading in preparation is needed since each party submits materials.  The extra administrative work related to this was not contemplated when the amount was set.

     Mediators are not authorized to charge disbursements without the parties consent and I for one do not bother to charge unless there is a high expense item.  It is generally more trouble than it is worth to try to get lawyers to agree.  Some mediators just put little expenses (like downtown parking) on their bill and hope they get paid.  I do understand that most counsel simply pay reasonable small disbursements without challenge.  The main potential expense and issue for consideration is where to hold the mediation.  You always need at least two rooms in a place where there will not be interruptions.  Sometimes this rules out lawyers' offices unless there are specific boardrooms and smaller meeting rooms available.  Each roster mediator usually has a place they can arrange for the mediation to take place either for free or with some room rental charge.  In your database of mediators keep information on each mediator’s preferred location and associated costs.  Lack of consent to disbursements related to room rental is often the reason a mediator is not selected.  Most mediators will not have a problem traveling to the selected local mediation venue and they should not normally bill their travel time.   If your firm has a boardroom large enough for all parties and counsel plus smaller breakout rooms available it should be suitable for mediation.  If the other party is uncomfortable meeting on your premises it is reasonable to go to a neutral location. Be sensitive to handicap access issues, which may arise.  When hosting a mediation session it is always helpful to supply at least basic refreshments such as coffee, water and cookies.  More than that could be very helpful to creating a positive attitude with the other party that may actually encourage settlement.  Fresh fruit and juice are popular extras, which create enormous good will. Convenience to the parties is important so do note where the various people attending are coming from and take that into account.  People who do not work downtown do not enjoy coming in to search for costly and hard to find parking.  Unless it is obvious you should supply the other party with directions (including parking and public transit info) and other information about getting to your mediation site.  Most parties like to arrive and meet about a half hour ahead of the start time and so access should be available then and earlier upon request.  Before the mediation takes place on your premises or elsewhere find out and relay the necessary logistics information for the benefit of the lawyer and client who will be attending from your office.  Let the mediator and the other parties know in advance who will be attending from your side and if you need any special audiovisual or other equipment to be present. You may need to supply such equipment yourself.

Plan carefully for what you need to bring to the mediation.  Often there are large plans or other items not kept in the regular file, which could be useful at mediation.   Surveillance videos can be effectively used at mediation and there is no need to make your intention to use them a surprise.  When you show more of your cards in this off the record meeting you are more likely to end up with a positive result.  Often parties will want the mediator to see the surveillance video and give their impressions of what it shows and its importance.  If the mediation is off of your premises be sure you are aware of telephone and fax numbers there and what copying and other facilities available.  Your office may have to relay something important to you while you are at mediation.  It is often necessary to bring cell phones to ensure critical calls are received that relate to the case.  Mediation is supposed to be without disturbing interruptions and normally cell phone calls should not be allowed to interrupt in mediation.  Make sure extra copies of important documents that may be used at the mediation are available so time is less likely to be spent photocopying there or waiting for faxes from your office.  Usually it is wise to bring to mediation the entire file because if you do not you are likely to need a document that was not brought. 

       There is no reason for Plaintiff's counsel to delay in sending out copies of pleadings to the mediator.  As pleadings often do not really explain the case and in fact can be misleading, an explanatory covering letter is often very helpful to the mediator.  For example there may be no real liability issue in a motor vehicle personal injury case but it may be pleaded for policy limits or other reasons.  It is good to let the mediator know in such a case in advance by letter that for purposes of the mediation liability will not be an issue.  The Statement of Issues is supposed to set out what the issues in the action are and should be an objective list.  This shows a degree of fairness and desire to inform the mediator of the facts.  There is lots of room to comment on your party's position on each of the issues in the body of the document.  The statement can be in the form of a long letter or the form prescribed by the rules but the format of a Pre trial memo is generally more useful to the mediator. It is different than a pretrial memo in that it is directed towards assisting at a less formal meeting where the clients are present and a judging role is not expected from the mediator.  The memo should let the mediator know what your client is like and give an impression of what to expect.  If it helps the mediator develop an understanding and rapport with your client it has served a valuable purpose.  Mediation is intended to be interest based not rights based.  That means the focus of the process is resolution in a manner that works for all parties rather than making a finding of who is right and who is wrong.  The memo should explain who the people are who are involved and their perspectives on the case.  Do not overlook outlining the facts and discussing the merits of different positions taken on the issues.  It is vital to include with tabs and an index the most important documents related to the case or highlighted extracts from them.  This will save the mediator from asking to have everything explained and to see the documents at the opening of the mediation.  It is expected that each side will submit the documents helpful to their own case argument and not simply send along a full volume of Schedule A documents from an Affidavit of Documents.  Remember the mediator is not expected to take over an hour to prepare in total and should be given a summary which is a concise set of materials that can be reviewed quickly in advance of the session.  Highlight key information on documents given to the mediator.  It may be helpful to explain some legal principles and include applicable case law particularly if the mediator is not a lawyer or is a lawyer outside of their usual area of practice.

     A mandatory mediation session is generally scheduled for three hours.  This does not give much time to get to the point.  The lawyer should come in ready to provide a concise opening statement of your side's position, which highlights and adds to what is in your statement of issues.  After preliminary introductions Plaintiffs counsel is usually asked to begin by making an opening statement.  It is helpful to have a Plaintiff then add to it by commenting or explaining their situation from a personal point of view.  This allows opposing counsel to assess the person and type of witness they would be and often contributes to settlement.  Usually counsel allow their party to answer questions but can refuse at any time.  Since there has been no discovery yet this can be extremely important.  Remember it is the opposing party you want to impress more than the mediator to get the case settled.  Mediation is a forum for risk assessment where each party should get a better understanding of their own and the other parties weaknesses and strengths.  Often factual questions come up at mediation, which can be answered if the lawyer’ file is organized so that the lawyer can locate the information readily.   Unless the cost or time restraints make it prohibitive it is helpful if the law clerk most familiar with the file attends the mediation along with counsel in charge.   The law clerk's knowledge of the file is very important and generally more useful than having a junior or student along to sit in and get a learning experience.

     Often mandatory mediations run a little longer than scheduled when progress is being made but extra sessions can be scheduled with the mediator and usually that will require booking another date mutually agreeable to all.  The sooner the resumption the better so as to avoid losing the momentum of progress.  Where possible plan ahead for an optional extra block of time to continue on the same or the next day if it appears it may be needed. The roster mediator normally charges the tariff maximum of $150 for the mandatory three hours of mediation a cost that is shared equally by all parties.  Beyond and outside of the tariff's scope most mediators hope to earn more but usually have some flexibility in their rates when asked about further mediation time.  If the mediation is proceeding well with more time needed it is well worth the cost of continuing and the equal sharing of costs under the mandatory mediation process is no longer required.  It becomes like a private mediation although the mediator still does report to the court on the outcome using the same prescribed form.

     Mandatory mediation is something we must do by obligation and not by choice.  That alone should reduce the rate of success statistically.  Despite that and the reduced scope of the process it has been remarkably effective at settling cases.  Successful mediation is not limited to settlement.  If some issues are resolved or even clarified that can be a great benefit.  It can also be used as a meeting to assist in timetabling the rest of the litigation process for the case.  Even a mediation that appears to be a total failure is remembered and may have an impact in settlement made at a later stage.  I encourage you to treat these mediations very seriously and make your best effort to prepare well for them.  The mediators try very hard to make a positive impact and good will by all in the process usually leads to a good result.