Mediation

Mediation is now mandatory in all cases commenced in Toronto as of January 2002. It is also mandatory in Windsor and Ottawa. Mediation must take place within 150 days of the first filing from the company, "Notice of Intent to Defend". That filing is due within 20 days from service of the claim. This rule applies to only wrongful dismissal cases.

Mediation allows a neutral third party, usually a lawyer experienced in this area of the law, to meet with both parties to attempt to settle the case. Typically this happens before discoveries have been completed, but not necessarily. Both lawyers agree to the name of the mediator to be used. In unusual cases where no consensus can be reached, the Court will appoint a mediator from a roster. In that case, there is no requirement that the mediator be conversant with employment law issues.

The mediator has no power to force a settlement or to make any form of order effecting either party. The role of the mediator is to try to settle the case with the consent of both parties.

Nothing said at the mediation can be repeated outside the mediation. In particular any offers of settlement or even information exchanged at the mediation may be not repeated in court, nor to any party external to the case.

One party may use, however, information received at the mediation to prove an issue independently. If for example, you state at the mediation that the sales and marketing report which was due on December 1 was typed by your assistant and was not delivered to an administrative error, the company could later ask him/her for his/her recall of the events relevant to that issue.

Summaries of the case are given by each party, referred to as "Statement of Issues", to the mediator who reviews the essential issues of the case in advance. Mandatory mediation is a minimum of 3 hours. The costs of the mediator are also the subject of negotiations at the mediation. If the case does not settle, the parties share the fees of the mediator.

It is important to prepare for mediation just as you would prepare for discovery. Bring all relevant documents, including your job search file and any proof of any income earned since termination. If you started our own business, bring a statement of profit and loss to date, with as much supporting documentation as possible. Also important are any receipts for payment of medical or drug or similar costs from the date of termination forward. If your medical state is in issue, you will need a report from your physician.

Mediation has proven to be quite successful in settlement of cases. Approximately 90% of cases settle at this stage. Presuming settlement, minutes of settlement are signed at the mediation and payment of settlement funds usually follows within 2 to 3 weeks after the mediation.

If the case does not settle, it will follow the usual path of the lawsuit. Discoveries will then be held for claims over $50,000.

Mediators frequently used include the following: