In Toronto, Ottawa and Essex County, most civil actions must go to mediation long before they go near a trial. It is not optional and it is not a formality — a large share of cases end there. Treat it as the main event, not a box to tick on the way to a trial date.
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Rule 24.1 of the Rules of Civil Procedure creates the Ontario Mandatory Mediation Program. It applies in the City of Toronto, the City of Ottawa and the County of Essex, which in practice means Windsor. A parallel rule, Rule 75.1, covers contested estates, trusts and substitute decisions matters in the same three places.
The mediation must be held within 180 days after the first defence is filed, unless the court orders otherwise or the parties file a consent extending it. That deadline arrives faster than most people expect, and it is the reason mediation often happens before documentary discovery is finished.
Several categories are exempt: family law proceedings, Toronto Commercial List cases, mortgage actions, most Construction Act claims other than trust claims, bankruptcy matters, class proceedings, and cases already mediated under the Insurance Act within the year before the first defence.
Everywhere else in Ontario there is no compulsory mediation rule. That has not made mediation optional in practice — judges expect parties to have made a genuine attempt to resolve the case, and parties routinely agree to mediate before a pre-trial conference.
The parties choose a mediator by agreement, usually from the local roster. If nobody chooses within the time allowed, the mediation coordinator assigns one. You can also agree on a private mediator outside the roster at their own rates.
Each party serves a statement of issues in advance, along with the documents that matter, so the mediator arrives knowing the case. It is worth writing properly — for most cases this is the first document that sets out your position in a form the other side's decision-maker will actually read.
The mediator has no power to decide anything. The day typically begins with everyone together, then moves to private caucuses where the mediator carries offers and tests each side's case. Everything said is confidential and without prejudice, and cannot be used later in the proceeding.
The person with authority to settle has to be there or be immediately reachable. That includes an insurer's adjuster where there is coverage. Mediations fail more often for want of authority than for want of a deal.
For a roster mediator, the fee for a standard session is capped by regulation and rises with the number of parties. It is shared equally among the parties unless they agree otherwise. Sessions running longer than the standard block, and privately retained mediators, are at agreed rates.
Against that, weigh what the alternative costs. A case that settles at mediation avoids examinations for discovery, undertakings, motions, expert reports and a trial. The mediator's fee is usually the cheapest line item in the file.
If a party does not attend, the mediator files a certificate of non-compliance with the mediation coordinator. The court can then order the party to attend, adjourn the action, award costs, or in a serious case dismiss the action or strike the defence.
Decide your walk-away number before you arrive, and decide it against your realistic cost exposure if you lose — not against what you feel you are owed. Litigation costs in Ontario move in one direction, and the losing party usually pays a share of the winner's.
Bring the documents that prove the number. Invoices, ledgers, medical records and repair estimates move a mediation; a compelling narrative without documents does not.
A formal offer to settle served before the mediation sharpens everything, because it puts costs consequences on the table if the case goes on. And if you do reach a deal, sign minutes of settlement before you leave the room. Deals that are left to be papered later have a habit of unravelling overnight.
No. You have to attend and participate in good faith. Nobody can force you to accept a number. But going in with a fixed refusal to move wastes the day and can attract costs consequences later if the result at trial is no better.
Yes. Mediation communications are without prejudice and are not admissible in the proceeding. That is what allows both sides to discuss weaknesses candidly. Documents that were producible anyway do not become privileged just because they were shown at mediation.
Rule 24.1 does not, because it runs only in Toronto, Ottawa and Essex County. Mediation is still available by agreement, and it is usually a good idea. Judges elsewhere expect to see a genuine attempt at resolution before trial.
By default the cost is split equally among the parties, and for roster mediators the fee for a standard session is capped by regulation. Parties can agree to a different split, and a settlement can allocate the cost differently as part of the deal.
The mediator files a certificate of non-compliance. From there you can move for costs, for an order compelling attendance, or in a serious case for an order striking their pleading. Non-attendance is treated as non-compliance with a court rule, not a scheduling problem.
Open your file tonight — a licensed Ontario lawyer will confirm everything with you by tomorrow.