How are Private Mediations Scheduled?
Private mediations are simply booked with the mediator the parties have agreed to use.
The parties generally tell the mediator the general location where they would like the mediation to be held (typically the nearest big city), and the mediator will select the specific location. If the parties live far apart, generally the parties choose a mid-way location so the inconvenience is shared equally. In rare circumstances, perhaps where mobility and distance are major factors, a mediation can be held through a video platform such as Skype, GoTo Meeting or Zoom.
Mediations are normally scheduled for either a full day, or a half day (either for 3 hours in the morning or for 3 hours in the afternoon). If a matter is particularly complex, or involves a large number of parties, a full day is probably advisable.
If parties are represented by a lawyer or a para-legal, the mediation fee will become payable following the mediation. When parties are self-represented, the mediation fee must be paid up-front, prior to the start of the mediation.
When should Mediation be Scheduled?
There is no one singular answer to this question and the answer depends on a variety of factors, such as the type of dispute, and the stage of the dispute. For example, before a formal claim has actually been started, mediation can be held at any time. Indeed, for commercial disputes, the Commercial Mediation Act, 2010, S.O. 2010, c.16, incentivizes parties to mediate before starting a lawsuit, because it gives the parties the ability to convert their settlements reached at mediation into judgments, should a judgment be needed for enforcement purposes.
After a claim has started, some jurisdictions where mediation is mandatory in Ontario, Rule 24.1 of the Rules of Civil Procedure will mandate when the parties must mediate their dispute. In 2017, the Ontario Rules of Civil Procedure changed to prevent parties from holding their mandatory mediation as late as a few months before the pre-trial. Indeed, as of 2017, the court will not release pre-trial and trial dates prior to the parties participating in mediation.
In situations where mediation is not a mandatory requirement, mediation can be held at any time: from not at all, to very early in the dispute, or very late in the dispute, such as the day before a trial begins. Indeed, theoretically mediation could be held mid-way through a trial, or even after a trial if the parties wish to resolve their dispute before an appeal.
Despite the fact that mediation can, for the most part, be held “whenever,” mediation is most likely to be fruitful when the parties have their cases well developed: typically after there has been a good exchange of information through documentary or oral disclosure. However, experience has shown us that certain cases mature to readiness faster than others. Parties to a wrongful dismissal case, for example, tend to hold mediation before, or shortly after, the parties file their pleadings, and sometimes even before a claim is filed. Uncomplicated family law disputes are often best mediated at an early stage before parties embark in costly litigation, and become more entrenched in their “positions.” On the other extreme are personal injury claims where it is common for mediation to take place relatively late in the process.
