As per Rule 24.1 of Ontario's Rules of Civil Procedure, certain court proceedings in Ontario are subject to mandatory mediation. Even if it is not mandatory in a particular proceeding, mediation is a form of alternate dispute resolution that parties may want to consider to avoid a full trial, reduce the costs of litigation, and hopefully arrive at a settlement that is agreeable to everyone involved. Whether or not a mediation is successful is, in large part, dependant on the choice of mediator.

When choosing a mediator, parties tend to focus on the mediator's expertise. They want to find someone knowledgeable in the subject matter of the case. There is no doubt that such expertise can be helpful. However, for a mediation to truly be successful, the mediator must also have a certain skillset. The mediator must be able to listen, understand the parties' concerns and identify the parties' interests even if they are not obvious on the surface. Consider, for example, that disputes can be emotionally driven. A good mediator should be able to sense and identify underlying issues, such as the desire of one of the parties to reconcile or receive an apology from the other and then facilitate that. Time and again, these skills prove to be much more important in a mediator than subject-matter expertise.

Moreover, these skills apply to all types of mediation, including commercial disputes. In fact, it is in a commercial dispute that a mediator may be more likely to overlook the emotional component or other underlying issues, which may not be as obvious as they are in family or estate-related matters. A skilled mediator will always go beyond a strict reading of the law and leverage the unique set of facts, as well as the uncertainty and expense of a trial, to bring the parties to a mutually agreeable resolution.

Originally Published by Devry Smith Frank, January 2021

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.

By Eric Gossin and Steven Huryn