Mediation is a private, faster, and less expensive process where a neutral mediator helps the parties reach their own mutually agreed resolution; litigation is the adversarial court process where a judge imposes a binding decision. Most civil actions filed in Toronto, Ottawa, and Windsor are subject to mandatory mediation, typically within 90 days of the statement of defence being filed. Mediation works best where parties are willing to engage constructively; litigation may be necessary where they are not, or where a binding, enforceable outcome is required regardless of agreement.
- Mediation has been mandatory in most Toronto, Ottawa, and Windsor civil actions for close to two decades, aside from family law and certain excluded matters.
- Mediation typically must occur within 90 days of the statement of defence being filed.
- Mediation is generally faster, less expensive, and more private than proceeding through discovery, motions, and trial.
- A mediation agreement is not automatically legally binding unless formalized in a written settlement contract.
- Litigation guarantees a definitive, binding outcome — useful where the other side will not cooperate or where enforceability is essential.
- A fully contested Superior Court matter can take two to five years or more and cost tens of thousands of dollars if it proceeds to trial.
Mandatory Mediation in Toronto
Mediation has been required in most civil litigation proceedings in Toronto, Ottawa, and Essex County (Windsor) for close to two decades. Most civil actions in the Ontario Superior Court of Justice issued in these regions require mandatory mediation, aside from family law cases and certain other excluded matters — typically occurring within 90 days after the first statement of defence is filed.
How Mediation Actually Works
A neutral, trained mediator facilitates communication and negotiation between the parties, working to understand each side's underlying interests and find a mutually agreeable resolution — rather than imposing a decision the way a judge would. Mediation is a private process; the details of the dispute and any resolution are not part of the public court record, unlike a trial.
The Case for Mediation
- Cost-effectiveness. A half-day session with a private mediator typically costs a few thousand dollars, usually split between the parties — a fraction of contested litigation costs.
- Speed. Mediation can often be scheduled and completed in weeks, compared to the months or years litigation can take to reach trial.
- Privacy. Unlike a public trial, the dispute and its resolution stay confidential.
- Control over the outcome. The parties negotiate their own resolution, rather than having one imposed on them.
- Relationship preservation. Particularly valuable where the parties — co-owners, business partners, or ongoing commercial counterparties — need to keep working together.
Ontario's mandatory mediation program has significantly reduced the time taken to resolve civil cases and increased litigant satisfaction with the process, based on outcomes tracked since the program's introduction.
When Litigation Is Necessary
Litigation remains essential where the other side will not engage in good faith, or where you need a definitive, court-enforceable outcome regardless of whether the other party agrees to it. Litigation is also the only path to certain relief mediation cannot provide — including an emergency injunction or a binding judgment that can be enforced against a debtor's assets.
A mediated agreement only becomes legally binding once formalized in a written settlement contract — reaching a verbal understanding at mediation is not the finish line; getting it signed is.
Choosing Your Approach
In practice, most Toronto commercial and civil disputes will pass through mediation regardless — the real question is how to use that mandatory step strategically, rather than treating it as a formality. We prepare clients thoroughly for mediation, including realistic settlement ranges, while remaining fully prepared to proceed through the balance of the litigation process if mediation does not resolve the matter.
Two Ontario business partners dispute the value of one partner's exit buyout. Rather than litigating a valuation dispute to trial — expensive and slow — mediation with a neutral facilitator narrows the gap between the parties' positions and results in an agreed buyout price within a single session.
Call our Ontario civil litigation lawyers at 416-274-2222 to discuss the right strategy for your dispute.
Frequently Asked Questions
For most civil actions filed in the Ontario Superior Court in Toronto, Ottawa, or Essex County (Windsor), yes — mediation is required before trial, aside from family law matters and certain other exclusions. It typically must occur within 90 days of the statement of defence being filed.
Not automatically — a mediation agreement is only binding once it is formalized in a written settlement contract signed by the parties. Until then, either party could in principle back out, which is why turning a successful mediation into a signed agreement promptly matters.
Mediation is typically far less expensive — a half-day session with a private mediator often costs several thousand dollars in mediator fees, usually split between the parties, compared to the tens of thousands a fully contested trial can cost in legal fees and disbursements alone.
The main drawback is that mediation is non-binding until a settlement is signed, and it requires some genuine willingness from both sides to negotiate. If one party has no real interest in resolving the dispute, mediation can amount to an added cost and delay before litigation proceeds anyway.
When the other party will not engage in good faith, when you need a binding, court-enforceable outcome regardless of agreement, or when the dispute involves urgent relief — such as an injunction — that mediation cannot provide.
Yes — mediation is generally a required step along the litigation path, not an alternative to it. If mediation does not resolve the dispute, the litigation simply continues toward trial, with mediation having at minimum clarified each side's position.