Over the past several years, I have observed meaningful changes in the way civil litigants and their counsel approach mediation in Ontario. While the core purpose of mediation remains unchanged, to provide parties with an opportunity to resolve disputes efficiently, confidentially, and on mutually acceptable terms, the process has evolved in response to shifting litigation practices, increasing costs, and ongoing court delays. Several trends, in particular, have reshaped the mediation landscape.
Mediation Is Happening Later in the Litigation Process
One of the most notable developments is the tendency for parties to mediate later in the litigation process. Historically, many cases proceeded to mediation relatively early, often shortly after the close of pleadings. Today, parties are increasingly choosing to defer mediation until examinations for discovery have been completed, documentary productions have been exchanged, and expert reports have been obtained. This approach reflects a desire to negotiate from a position of greater certainty. By the time the parties attend mediation, they often have a clearer understanding of the evidentiary strengths and weaknesses of their respective positions, allowing for more realistic discussions regarding liability, damages, and litigation risk.
Pre-Mediation Preparation Is Becoming More Important
A second trend is the growing emphasis on comprehensive pre-mediation preparation. Effective mediation is increasingly viewed as a process that begins well before the scheduled mediation date. Counsel are investing substantial effort in preparing detailed mediation briefs, identifying the key issues in dispute, exchanging critical documents, and developing thoughtful settlement positions. In many cases, mediators are conducting pre-mediation calls with counsel to discuss procedural concerns, identify potential barriers to settlement, and ensure that the appropriate decision-makers will be available and adequately prepared. This level of preparation helps maximize the value of the mediation day and often contributes to more productive negotiations.
Court Delays and Litigation Costs Are Shaping Settlement Discussions
The continued impact of court delays and litigation costs has also become a significant factor influencing settlement discussions. Although Ontario’s courts have made progress in addressing the backlog created by the pandemic, civil actions can still take years to reach trial. At the same time, the costs associated with litigation, including expert fees, discovery costs, motion practice, and trial preparation, continue to rise. Parties are increasingly mindful of the financial and emotional burden associated with prolonged litigation. As a result, mediation has become an even more important forum for exploring practical resolutions that balance legal merit with business, financial, and personal considerations.
Growing Demand for Evaluative Mediation
Finally, there has been a noticeable increase in the demand for evaluative mediation. While facilitative mediation remains an important and effective model, many parties now seek mediators who are willing to provide candid feedback regarding the strengths and weaknesses of a case. Counsel and clients often value an experienced mediator’s perspective on how a court may view the evidence, assess credibility, or evaluate damages. This does not mean that mediators are deciding cases or imposing outcomes; rather, they are helping parties realistically assess risk and test assumptions that may be impeding settlement. In many instances, this evaluative component can provide the momentum necessary to bridge gaps and achieve resolution.
What These Trends Mean for Civil Litigants in Ontario
Taken together, these trends reflect the growing sophistication of civil mediation in Ontario. Parties are approaching mediation with greater preparation, more information, and a heightened awareness of litigation risk. As a result, mediation continues to play an increasingly important role in helping litigants resolve disputes efficiently while maintaining control over the outcome.
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Mediation can provide a practical, efficient path forward in complex civil disputes. If you are seeking an experienced mediator, please contact us to discuss how our mediation services can support a productive resolution.
