Timing of Alternative Dispute Resolution in Employment Disputes

  • April 17, 2024
  • Stuart Rudner


Hopefully, by now it goes without saying that mediation is tremendously effective in helping parties to resolve employment disputes. While we have mandatory mediation in some parts of Ontario, many jurisdictions do not require mediation before trial, and even where it is required, it can be done toward the end of the litigation process rather than near the beginning. At that point, a lot of time has gone by and a lot of money has been spent. I often recommend pre-litigation mediation so that the parties can avoid spending any unnecessary money on the court process. That is tremendously effective for straightforward notice cases where the facts are not in dispute.

In cases where there are genuine factual issues, such as cases where just cause or harassment is alleged, then it makes sense to allow some discovery before mediation. I often recommend the exchange of affidavits of documents and some examinations for discovery in those cases. I have also had successful split mediations where we have commenced the mediation early in the process, realized that some discovery was necessary, reached agreement on some points such as the notice period, and then resumed the mediation after discoveries in order to address the other issues. That is one great thing about ADR: you can be as creative as you are able to be.

Sometimes one or both parties need to be heard, and will only be receptive to mediation after examinations for discovery. However, I find that in most cases a well conducted mediation will satisfy a party’s need for their “day in court”. As long as the mediator listens to them, then they are often able to move on to discussing the potential resolution of the claim.

In other cases, parties are hung up on principle at the outset and are not open to negotiating resolution. However, as time goes by and costs increase, they are often more amenable to discussion of resolution. In those cases, mediation may have to wait until later in the process.