LinkedIn thinks I’m an “expert” on mediation. That’s interesting.
As a Civil Litigator in Ontario, any litigation started in Toronto is subject to mediation, so a high volume of our files are required to mediate before moving forward to trial and many do settle at mediation, though often they settle at pre-trial after a failed mediation.
Why? Well, based on my alleged “expert” opinion (not an expert within the LSO meaning of the word) here is why files settle after a failed mediation:
- Counsel for one or both parties failed to advise their clients on the reality of the likelihood of success at trial, or frankly, prepare them for mediation at all.
It’s very obvious to everyone if the lawyer for a party is meeting their client for the first time at mediation and getting direct information from them during the mediation. This often occurs when a party has hired a lawyer working on contingency and frankly, slows down the pace of settlement.
- The mediator didn’t weigh in, at least with counsel privately, what the strength of each side looked like.
A reality check on the current state of case law for counsel is often all that is needed to help push the file into a reasonable resolution situation.
- The file turns out to be something that should have been brought in Small Claims Court and not in Superior Court.
This is very common when dealing with counsel for certain wrongful dismissal firms. They start the file in Superior Court to get mandatory mediation and when it doesn’t settle, they’re stuck facing legal fees against their client for starting in the wrong court.
- The Pre-Trial judge is there to try to settle the litigation, not just check of the trial checklist form.
I’ve had Judges work on a file late into the evening to get it settled. I’ve also had Judges who don’t want to try to settle the file, they want to deal with the trial checklist form. A pre-trial Judge who understands the issues and the law can save a lot of trial time but getting the parties to understand the risks they are taking by not settling.
Our firm meets with clients well ahead of mediation to understand the file and the best way to resolve the issues. Our firm ensures we know the most recent caselaw and are able to support our positions. Our firm always starts litigation in the right Court and our lawyers will always ask a pre-trial Judge to assist with settlement if possible. By doing this, we don’t waste legal fees on an extra step when the file should settle at mediation to begin with.
Inga B. Andriessen, Senior Lawyer