Insights

Effective April 19, 2022, the Ontario Superior Court issued a new Practice Direction establishing in-person as the presumptive mode of proceeding for common litigation events, including mediations. Now some three months later, what has been the fall-out from that new Practice Direction?

Now that Omicron appears to be waning, vaccine levels are high and expanded treatment options are becoming available, governments at every level appear eager to accelerate the lifting of restrictions. What will that mean for mediation going forward?

The Province of Ontario entered into Step 1 of its three-step “re-opening” plan on June 11th, 2021. It is anticipated that they will progress to Step 3 (close to “normal”) by the end of the summer, which will include larger in-door gatherings of “non-family” groups. What will this mean for the practice of mediation as it has evolved through the pandemic - a lot, or not much?

I recently came across an interesting paper by David Wakely. It deals, in part, with the implications of Covid-19 on nonverbal communciation in virtual mediations. He also analyzes the stresses on effective communication created by the technology platforms themselves, and suggests a number of ways to counteract them.

I recently conducted my first in-person mediation in six months. Here are some of my observations of the experience, key takeaways, and forecast for the future.

Nowhere is civility more critical to the outcome of a proceeding than mediation, as success at depends entirely on adversaries "agreeing". Observing proper etiquette aids in maintaining civility.

Re-opening of businesses in Ontario is now beginning. Some mediation facilities have announced plans to re-open in the near future, with extensive safety measures in place, to accommodate in-person mediations. However, are those measures sufficient?

Here are some useful "Tips" and "Tidbits" for conducting effective virtual mediations:

Preparation
Get comfortable with the Platform
Ensure Confidentiality
Different Yet Familiar Process
Be Professional
Have a Schedule

Five tips when confronted with bad behavior at mediation.

Preparation for a mediation by plaintiff's counsel should not be a casual, or last minute, undertaking. Insurance adjusters roundtable, value, and reserve cases weeks before a mediation.

The three most common pitfalls or obstacles to a successful mediation…

When is the right time to mediate? Usually that is when each party has sufficient knowledge of the other's case that the opportunity for settlement can be maximised.