Recent Changes to Toronto Mandatory Mediation Practice Reflect an Early Mediation Trend

ADR@SGR Newsletter (Late Spring / Early Summer 2017): On May 1, 2017, there was a significant change to paragraph 57 of the Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region: For all Toronto civil actions subject to Mandatory Mediation under Rule 24.1, Court staff now require a new form of Certificate to be filed in order to set an action down for trial.

Court staff previously accepted for filing a trial record (ordinary action) or a notice of readiness for Pre-Trial conference (simplified procedure) a Certificate signed by a lawyer or party which certified that a Form 24.1A (Notice of Name of Mediator and Date of Session) had been filed with the mediation coordinator. The Certificate did not require that the mediation session had actually taken place. Therefore, an action could be set down before mediation, provided it took place before the Pre-Trial.

The new Certificate requires the filing of a Form 24.1A plus certification by the party or lawyer signing that the mediation took place before a particular mediator on a particular date. Thus, mediation must take place prior to setting an action down.

Like before, however, this assumes that the mediator has not already filed a report confirming conclusion of the mediation, or that an order has not been obtained exempting the action from mediation or extending the deadline for mediation.

For many actions though, the change means one thing: Earlier mediation.

This will have implications especially for personal injury actions where it is common for mediation to take place relatively late in the process (well after examinations for discover, or months before Pre-Trial). The change will have little impact on other actions, like wrongful dismissal cases, where the trend is to hold mediation before, or shortly after, the close of pleadings (or even before the issuance of a Statement of Claim).

The recent changes to the Practice Direction reflect a movement across the board toward earlier mediation. What remains to be seen is if mandatory mediation becomes province-wide (instead of just in Toronto, Ottawa and Windsor), if mediation will be required to take place even earlier in an action, or if a second mediation will be required if an early mediation does not result in a settlement. Multiple mediations are already common in certain types of cases, like neighbour disputes, family law and some multiparty actions.

PRE-LITIGATION MEDIATION: OBA, JUNE 21, 2017

Please join Mitchell Rose, of our firm, with other panelists (along with Eric Gossin, chair of the OBA's ADR Section Executive), for a breakfast CPD program at the Ontario Bar Association, Toronto, or by webcast, called “Recent Developments in ADR Processes” Mitch will speak specifically on pre-litigation resolution, including mediation and other forms of ADR.