Client Resources / Mediation
Most civil cases end at mediation rather than at trial. It is a long day of waiting punctuated by decisions, and the preparation that matters is knowing your numbers before you walk in.
Reviewed August 2026Mediation is a private meeting where a neutral person, the mediator, helps the parties try to negotiate a settlement. The mediator is not a judge. They cannot decide anything, cannot rule on who is right, and cannot impose an outcome. Their job is to move the parties toward a number both sides can live with.
Nothing is decided unless you agree to it. You can say no and go home. That is worth holding onto, because a mediation day can feel like pressure, and the one thing that cannot happen is a result being imposed on you.
Mediation usually comes after discovery, once undertakings are answered and both sides finally know the case. In actions started in Toronto, Ottawa or Essex County it is mandatory, and generally has to take place within 180 days after the first statement of defence is filed unless the court orders otherwise or the parties file a consent.
Rules of Civil Procedure, rule 24.1.Everywhere else in Ontario it is voluntary, and almost everyone does it anyway, because it works. Attendance is obligatory where the rule applies, and a party who does not show up can face cost consequences.
One thing to keep separate: if your dispute is with your own auto insurer about accident benefits, that is resolved through the Licence Appeal Tribunal, not this process. This page is about the lawsuit.
You, your lawyer, the mediator, the lawyer for each defendant, and usually an insurance adjuster or a representative of the defendant with authority to settle. Anyone attending has to have that authority, or immediate telephone access to whoever does.
Mediations are held at the mediator's office, a boardroom, or by videoconference, which is now common. Sessions under the mandatory program are scheduled for three hours, but injury and malpractice cases are usually mediated privately over a half day or a full day.
There is often a short joint session at the start, though many mediators skip it now, particularly where the parties are far apart or the subject matter is painful. After that the parties separate into different rooms and the mediator shuttles between them.
That shuttle is the whole day. The mediator takes your position to the other room, comes back with a response, tests your case with you, tests theirs with them, and gradually narrows the gap. Long stretches of waiting are normal. If you are sitting in a room for forty minutes with nothing happening, the mediator is working.
Most of the talking is done by your lawyer. You may be asked to say something about how the injury or the loss has affected you, and if so it should be short, specific and your own words. It is not evidence and nobody is cross-examining you.
Your real job is decision-making. At some point you will be asked whether a number is acceptable, often with less time than you would like. That is why your lawyer will want to talk through your range before the day, so the decision is not being made cold.
Opening positions are almost never real. The first offer from a defendant is frequently low enough to be insulting, and it is meant to be a starting point rather than a statement of value. Reacting to it is the most common mistake clients make.
The first number is not an assessment of your case. It is the beginning of a negotiation.
Movement is usually slow at the start and faster at the end. A gap that looks impossible at noon closes surprisingly often by late afternoon. Your lawyer will read the pattern of the moves as much as the numbers themselves, because how a party moves says as much as what they offer.
This is the part clients are least prepared for, and it causes more disappointment than anything else on the day.
A settlement figure is almost always a global, all-inclusive number. What reaches you is what remains after legal fees, HST, and the disbursements spent building the case, which in a malpractice or serious injury file can be substantial because of expert reports. There may also be amounts that have to be repaid out of the settlement, and in a motor vehicle case a statutory deductible can apply to part of the award.
Ask your lawyer for the net figure before you are asked to accept anything. A good lawyer will have run those numbers already and will put them in front of you as the offers move. If you have not seen a net calculation, ask for one. You are entitled to decide on the number that actually arrives.
Formal written offers to settle carry cost consequences. In broad terms, if a party rejects a reasonable offer and then does worse at trial, that party can be ordered to pay a significant share of the other side's legal costs from the date of the offer onward.
That is why a lawyer who has been fighting hard for you may, at mediation, start talking about the risks of continuing. It is not a loss of nerve. It is an assessment of what rejecting a particular number could cost you if the trial goes badly, and you are entitled to have that explained in plain figures rather than in generalities.
Mediation is confidential and without prejudice. Positions taken, concessions floated and numbers discussed cannot be used against you later in the proceeding, and the mediator cannot be called to give evidence about what happened.
That protection is what makes the process work. It is why a defendant who has denied everything in writing can suddenly discuss money, and why you can consider a figure without it being treated as an admission that your case is worth less.
Many clients, particularly in malpractice cases, arrive wanting something other than money. An explanation. An acknowledgement that something went wrong. An apology. An assurance that it will not happen to someone else.
Mediation sometimes produces those things and often does not, because the people who could offer them are frequently not in the room and their insurers are cautious about anything that sounds like an admission. It is worth deciding in advance how much weight you place on that, and telling your lawyer, because it can be raised. It should not be the thing you discover you needed at four in the afternoon.
If you reach agreement, minutes of settlement are usually signed before anyone leaves. That document is binding. You cannot go home, think it over, and change your mind the next morning, which is exactly why you should not sign anything you do not understand or have not seen the net figure for.
If it does not settle, that is not a failure. Cases that do not resolve at mediation frequently settle in the weeks that follow, once each side has digested what it heard. The issues are usually narrower afterward, and mediation can be reconvened. The case simply continues toward the pre-trial conference.
Usually not for most of the day. Many mediations now skip the joint opening session entirely, and if being in the same room would be distressing you should say so in advance. It can be arranged around.
No. The mediator has no power to decide anything or to bind you. They may test your position robustly, which is their job, but the decision is always yours.
The parties share the mediator's fee, usually equally, unless the court orders otherwise. Your lawyer will explain how it is handled on your file.
Say so. Offers can sometimes be left open for a period after the mediation. What you should not do is sign minutes of settlement to end an uncomfortable day.
Often not. Where an insurer is defending, an adjuster with settlement authority usually attends instead of the individual defendant. In malpractice cases the physician frequently does not attend.
No. The process is confidential and without prejudice, and the mediator cannot be called as a witness about what was said.
Davidson Cahill Morrison LLP
We prepare clients for mediation in medical malpractice, personal injury, disability, insurance and municipal matters across Ontario. If you have questions about your own case, we are glad to answer them.
Contact Us All Client Resources