Mandatory Mediation in Ontario Civil Cases: What to Expect

Most people involved in an Ontario civil lawsuit will sit in a mediation session long before they ever see the inside of a courtroom. In certain Ontario jurisdictions, mandatory mediation is required by the Rules of Civil Procedure — parties must attend a structured negotiation session with a neutral mediator before the case proceeds to trial. This is not a formality. Mediation resolves a large proportion of Ontario civil cases that would otherwise go to trial.

This guide explains where mandatory mediation applies, how it works, what happens on the day, and how to get the most out of it.

Where Does Mandatory Mediation Apply?

Ontario's mandatory mediation program (often associated with what was formerly Rule 24.1 of the Rules of Civil Procedure) applies to most defended civil actions in:

• Toronto (the Toronto Region)
• Ottawa
• Essex County (Windsor)

If your action is in one of these jurisdictions, mediation is not optional — it is required. Actions in other Ontario jurisdictions are not covered by the mandatory program, but parties in those areas may still agree to mediate voluntarily, and many do.

Certain types of proceedings are exempted from mandatory mediation (for example, some family law matters and class proceedings). Confirm with your lawyer whether your case is covered.

When Does Mediation Occur?

In Toronto, mandatory mediation is scheduled relatively early in the litigation — typically within a few months after the pleadings close. This means mediation often happens before full documentary and oral discovery. Early mediation is intentional: it can resolve disputes before both sides spend significant money on discovery.

The parties (or the court, if they cannot agree) select a mediator from the roster maintained by the mandatory mediation program or from the private roster of accredited mediators. The mediator charges a fee — typically split among the parties.

Choosing a Mediator

Mediators in the mandatory program are accredited and experienced in civil litigation. Each party can have input into the selection. Consider:

• Subject-matter expertise: a mediator with background in commercial disputes may be better suited than one focused on personal injury, and vice versa
• Style: some mediators are evaluative (they give opinions on the merits); others are facilitative (they focus on process and interests rather than assessing who is right)
• Availability: all parties and counsel must be available on the same date

What Happens Before Mediation

Mediation Brief

Before the session, each party typically prepares a mediation brief — a written summary provided to the mediator (and sometimes shared with the other side) setting out:

• Their version of the facts
• Their legal position
• What they want out of the dispute
• Why they believe their position is strong (and where they acknowledge risk)

A good mediation brief is candid about weaknesses. The mediator needs an accurate picture to be effective. Briefs presented purely for advocacy — ignoring your own risk — undermine the mediation process.

Authority to Settle

The individuals who attend mediation must have authority to settle. If a corporation is a party, the person in the room must be able to agree to a settlement without having to call the board. A mediator who discovers mid-session that the party across the table cannot actually agree to anything will call the session a waste of time — and they will be right.

What Happens on the Day

Opening Session

The mediator begins with a joint session — all parties and their lawyers in the room together. The mediator explains the process and the rules (particularly confidentiality). Each side typically has a short opportunity to summarize their position.

Private Caucuses

The mediator then moves between private caucuses — separate meetings with each party. This is where the real work happens. The mediator:

• Explores each side's interests and priorities (what do you actually need, as opposed to what you are demanding?)
• Reality-tests each side's case privately ("What do you think a judge will do with that argument?")
• Carries proposals back and forth

Good mediators are adept at helping parties see their case from the other side's perspective.

Settlement or Impasse

If the parties reach agreement, the mediator (or counsel) prepares a written settlement agreement or minutes of settlement that day. This document is binding. Do not leave mediation on a handshake — get it in writing before you go home.

If no agreement is reached, the mediator declares an impasse and the case continues. Mediation is confidential — nothing said in mediation can be used at trial. Offers made in mediation are not binding unless reduced to writing and executed.

Mediation Is Confidential

Everything said in mediation is protected by settlement privilege and by the confidentiality provisions of the mediation process. The mediator cannot be compelled to testify about what happened in the session. Admissions or concessions made during mediation cannot be tendered at trial.

This confidentiality is what allows parties to speak frankly. You can acknowledge weaknesses in your case, make proposals, and explore creative solutions — without any of it coming back to haunt you at trial.

When Mediation Fails — And Why That Is Still Useful

An impasse at mediation is not a failure in the full sense. Even when cases do not settle on the day, mediation typically:

• Clarifies the real issues in dispute
• Reveals the other side's priorities and interests
• Creates momentum toward settlement in the weeks after
• Lets parties hear an experienced neutral's frank assessment of their case

Many cases that "fail" at mediation settle within weeks of the session, once lawyers and clients have had time to absorb what they heard.

Frequently asked questions