Very few lawsuits in Ontario go all the way through a trial – most will settle well before that, because trials involve costs, delays and risks that all parties in a lawsuit would generally prefer to avoid if a reasonable settlement can be reached.
Settlement negotiations can happen at any stage of your lawsuit, in a formal or informal way. But where casual or intermittent negotiations aren’t working, mediations offer a way that both sides can focus and drive forward the settlement talks. It’s easy to see why in most cases it’s worth at least trying a mediation before going to trial:
In a nutshell, a mediation is a voluntary settlement meeting where all sides in a lawsuit try to avoid the costs, delays and risks of a trial by exchanging offers to try to reach a reasonable compromise with their opponents to resolve the issues in dispute.
WHAT TO EXPECT DURING A MEDIATION
In addition to you and your lawyer, the lawyer for the other side and their client (usually an adjuster with the insurance company) will be there, as well as a mediator.
The mediator is not there to decide the case. He or she is a neutral third-party who is a specialist in resolving legal disputes. The mediator’s role is to get both sides to understand where the other side is coming from and encourage a voluntary settlement.
In the weeks leading up to the mediation, each side will prepare a mediation brief that tries to persuasively summarize their case and to respond to the other side’s arguments. Since the arguments will have already been exchanged in the mediation briefs, in most cases relatively little time is spent presenting the case at the mediation itself. Each lawyer makes a brief opening statement at the beginning of the day to summarize some key points, but these presentations are not usually long or overly detailed. The day is primarily about negotiations; it is not about argument, questioning, or presenting evidence. Once the openings are completed, each side will split off into different rooms, and the mediator will go between the rooms, privately conferring with each side and taking offers to settle between them.
WILL IT SETTLE?
It may not be possible to find the “sweet spot” that all sides can agree to in order to settle a case, and not every mediation will lead to a settlement. But even a failed mediation can be valuable – the presentations and negotiations that did happen are usually helpful in framing future settlement discussions and will help in trial preparations by identifying the major areas of disagreement.
The most important thing to remember is that all decisions about whether to make, accept or reject a settlement offer at a mediation are yours to make. Your lawyer’s job is to advocate on your behalf and provide you with their best advice, but you will make the final decision whether or not to settle your case.