The Art and Science of Mediating

  • April 09, 2019
  • Paul M. Iacono, Q.C.

In the realm of civil justice in Ontario, with the passage of time, we have seen an increase in both procedural process and legal costs, and these items have combined to make access to a courtroom (justice) virtually impossible for the ordinary citizen.

This situation has resulted in the proliferation of mediation, as a dispute resolution process. For many civil litigation lawyers, the reality is that they will more likely represent clients at a mediation long before they ever conduct a civil trial. Indeed, there is a distinct possibility, that those professionals now being called to the bar, and who have an interest in civil litigation may never conduct a civil trial; and yet become quite adept and skilled at mediating.


In most cases, the subject matter of the dispute dictates how the lawyer will proceed. In some areas of law the issues crystallize early, an example would be an employment case. There are also many other types of disputes in the realm of estates litigation or in business cases where the fact situation will not change. These are the types of cases where early mediation can be used to great advantage. In some situations, you can eliminate even commencing a civil action to avoid the costly process that creates. There are other kinds of cases where examinations for discovery and full production must take place at a bare minimum prior to mediation, for instance personal injury, medical malpractice, or products liability cases.

It is essential that before the mediation process is commenced counsel has a complete understanding of what the client really wants; there are a small number of unique cases where it is not about the money. It may be about an apology, it may be about solving a dispute so that the parties can continue a longstanding business relationship. More importantly, the lawyer must have full knowledge of each and every issue in the case, and the evidentiary underpinning of all of them. The best possible outcome for a client is an early mediation that resolves the dispute.