Early mediation is a strategic tool that can advance your client's interests while allowing you to manage your time and resources efficiently. If the Phase 2 Consultation Paper released by the Civil Rules Review (CRR) Working Group on April 1, 2025, is adopted, mediation will become mandatory for nearly all civil cases issued in the Ontario Superior Court.
Lawyers, like most people, work toward deadlines. Once pleadings are served, consider setting a mediation date 3 to 6 months later. This will permit counsel to exchange the relevant productions, evaluate the value of the case, and obtain settlement instructions while working toward a clear and structured deadline.
Key Reasons to Mediate Early
Whether you represent the plaintiff or the defendant, here are key reasons to mediate early:
1. Cost Control
- Plaintiff Counsel: Early settlement minimizes out-of-pocket disbursements (e.g., expert reports, trial prep costs) that are often non-recoverable.
- Defence Counsel: Reduces legal fees, expert retainer costs, and adjuster time particularly helpful when facing high litigation budgets on modest claims.
2. Expedited Compensation
- Injured clients may be financially and emotionally vulnerable. Early resolution secures compensation without the long wait of trial, improving client satisfaction and reducing pressure on your practice.
3. Opportunity for Strategic Evaluation
- Early mediation can stress test your file: hearing the opposing party's arguments early helps identify evidentiary or legal weaknesses before committing to a lengthy trial path.
- You gain insight into the other side's valuation, potential trial strategy, and settlement posture.
4. Client Expectations Management
- Mediation is an effective forum to temper unrealistic expectations especially in soft tissue or disputed liability claims by exposing clients to objective risk assessment and a mediator's perspective.
5. Preserving Client Relationships
- Early mediation fosters a collaborative rather than adversarial approach, which can preserve relationships between parties, especially in cases involving family members, employers, or ongoing business connections. This can lead to better client satisfaction and referrals.
6. Reducing Emotional and Reputational Costs
- For plaintiffs, early resolution reduces the psychological strain of reliving trauma through discoveries or trial.
- For institutional defendants (e.g., municipalities, insurers), early settlement avoids public scrutiny and potential reputational harm.
7. Increased Flexibility in Settlement
- Mediation allows for creative, confidential resolutions such as structured settlements, tailored releases, and custom payment terms.
- This flexibility often disappears once a matter nears trial or is litigated.
8. Professional and Ethical Advantages
- Demonstrating a proactive, solution-oriented approach reflects well on you as counsel professionally and ethically.
- Early mediation shows that you're focused not just on litigation for its own sake, but on real results for your client.
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.
