Reconsidering Common Objections to Mediation

Most of the common reasons for declining mediation are well known. These include concerns that it may be premature, that additional information is required, or that the opposing party is unreasonable. Other justifications include the belief that the law is clear, the case is strong, and mediation would only increase costs. Some of these concerns are legitimate. Not every dispute is suitable for mediation, and even appropriate cases may not be ready for mediation at a particular stage.

Ontario has now had mandatory mediation in parts of the province for more than twenty-five years. The program began in Toronto and Ottawa in January 1999 and was later extended to Windsor. It currently applies to specified civil proceedings in Toronto, Ottawa and Windsor under Rule 24.1 of the Rules of Civil Procedure.

Despite these developments, mediation is not approached consistently across the province. Some counsel, particularly those practicing outside mandatory mediation regions, remain less inclined to consider it a routine aspect of civil litigation. This may reflect local practice, varying familiarity with the process, or the fact that mediation must be proposed rather than required in certain areas.

The decision to pursue or decline mediation should not be automatic. It should depend on the nature of the dispute, the parties involved, the information available, and the realistic objectives of each process.

The key consideration is whether a properly timed and structured mediation could serve a useful purpose in the specific dispute, and if not, the reasons for this determination.

It is Too Early. We Do Not Have Enough Information.

Sometimes it is too early. The parties may not yet understand what happened, what is genuinely disputed or what information is required to assess risk. Mediation is not a substitute for necessary disclosure, and parties should not be pressed to negotiate in the dark.

However, the assertions of “too early” and “not enough information” can also serve as justifications to delay meaningful settlement discussions until all procedural steps are completed. Mediation does not require exhaustive knowledge; rather, it requires sufficient reliable information to enable informed decision-making.

The more useful questions are:

• What information is actually necessary to evaluate the dispute?
• Can any genuine gaps be addressed through a focused exchange?
• What will be gained—and what will be spent—by waiting?

In some cases, examinations for discovery, expert reports or further production will be necessary before mediation can be productive. In others, a focused exchange of information may be enough. A mediator may also help the parties identify what information is reasonably required for a useful discussion. That does not turn mediation into informal discovery. It is simply part of ensuring that the parties are in a position to make informed decisions.

The timing of mediation should be a deliberate decision, rather than one dictated solely by the case’s position within the litigation timetable.

The Other Side is Unreasonable.

This is the most common explanation for failed negotiations, and in some cases, it is accurate. A party may hold unrealistic expectations, refuse to acknowledge evident litigation risks, delay proceedings, or approach negotiation without genuine interest in resolution. A mediator cannot facilitate a settlement where no realistic settlement range exists. However, the term “unreasonable” may encompass several distinct issues.

The parties may assess the evidence or risk differently. They may be working from different information or may have reached the limit of what direct negotiation can accomplish. Emotional, reputational or relational concerns may also be influencing positions that appear entirely legal or financial. That is not necessarily a reason to avoid mediation. It may be a reason to consider it.

A mediator may help the parties test some of their assumptions and better understand what is preventing movement. The problem may be missing information, poor communication, or very different risk assessments. It may also be that the parties are too far apart. None of that guarantees a settlement. It may, however, help the parties understand more clearly why they have not settled and whether further negotiation is worthwhile.

Suggesting Mediation Will Make Us Look Weak.

To put it mildly, this concern is outdated. Proposing mediation does not imply that a case is weak. Parties settle disputes for various reasons, not solely because one side believes its position cannot prevail.

Both parties may continue to believe that they will win while recognizing that settlement is still worth exploring. A party can firmly believe in its legal position while also taking account of the costs, delays, and uncertainties involved in obtaining a judgment.

The primary consideration is often the manner in which mediation is proposed. A concrete proposal that addresses timing, mediator selection, information exchange, and attendance is less likely to be misunderstood than a vague invitation to “discuss settlement.”

Mediation does not constitute a surrender. It provides an opportunity to determine whether the dispute can be resolved on acceptable terms before incurring additional time and expense.

The Law is Clear. We Have a Strong Case and Will Win.

The strength of a party’s case is relevant to the decision to mediate and the manner in which mediation should proceed. However, it is not, in itself, a sufficient justification for declining mediation.

The objection often arises where a party believes that the governing law is settled, the contract is clear, or the facts point strongly in one direction. The path forward is said to be obvious: pursue the claim, obtain judgment and recover what is due. Sometimes that assessment will be correct. But the existence of a dispute should prompt caution in itself. If the law is entirely clear and the outcome inevitable, why has the dispute not already been resolved?

The other party will usually see the matter differently and may also have obtained legal advice. Its lawyers may be wrong. But the fact that competent counsel can reach different conclusions should cause each party to test the certainty of its own position.

Even where the governing legal principles are well established, the parties may disagree about the facts, the evidence, how the law applies to what occurred or what remedy should follow.

In contractual disputes, they may also disagree about the meaning of the agreement, the surrounding circumstances, performance, notice, waiver, variation or damages. A provision that appears unambiguous to one party may look different when placed in the context in which the agreement was made and performed.

There is often a natural inclination to defend the meaning originally intended by those involved in drafting or negotiating the agreement. This tendency does not indicate bad faith or professional inadequacy. However, it underscores the importance of independently testing underlying assumptions.

Even where success is likely, counsel and clients should consider what obtaining that result will involve. How long may it take? What will it cost? Will a judgment be enforceable and collectible? Is an appeal likely? What effect will the continuing dispute have on a business, an organization or an ongoing relationship?

Being legally right and obtaining the best available result for the client is not always the same thing. Counsel’s assessment of the merits is essential, but the client must decide what result best serves its interests.

That requires more than an opinion about who is likely to win. The client also needs to understand how long the case may take, what it may cost, whether a judgment can be enforced and what continuing the dispute may mean for its business or personal circumstances.

The remedies available through litigation are often more limited than those achievable through negotiated agreement. While a court may award damages, interpret agreements, or grant other legal relief, it may lack the authority to restructure ongoing relationships, revise future obligations, establish new working arrangements, or address practical concerns such as timing and payment.

Mediation enables parties to compare a potential settlement with the likely outcomes if litigation continues, including considerations of time, cost, and uncertainty. This comparison may confirm the appropriateness of proceeding with litigation, or it may demonstrate that achieving a workable result promptly is more valuable than pursuing a potentially superior outcome at a later stage.

We Need a Binding Decision or a Precedent.

This can be a valid reason not to settle. A party may require urgent relief, an authoritative interpretation, a public determination or findings that only a court or tribunal can make. Some disputes are also part of a broader series of cases in which a negotiated resolution would leave an important legal issue unresolved.

However, the need for precedent should be critically evaluated rather than assumed. Many civil disputes are fact-specific, and a written judgment may have limited significance beyond the immediate case. A party may primarily seek vindication, certainty, or acknowledgment that its position was justified, rather than a legal precedent. While these are legitimate interests, they do not necessarily equate to a legal necessity for precedent.

A mediated settlement is binding once properly documented, but it does not ordinarily impose a decision or provide public reasons.

Where those features are genuinely necessary, adjudication may be the appropriate process. Where they are not, the parties should consider whether the perceived need for a decision outweighs the possible benefits of a negotiated resolution.

Mediation Will Add Costs. We Can Negotiate Ourselves.

Yes, mediation costs money. It also requires preparation and takes time. It should not be recommended reflexively, particularly where the amount at issue is modest, the dispute is straightforward, the parties are already negotiating effectively, or there is little realistic prospect of movement.

But the relevant comparison is between the cost of mediation and the likely expenses associated with subsequent procedural steps in litigation, such as discovery, motions, expert evidence, trial, appeal, and enforcement.

Delay is a major part of that comparison. Civil litigation can take considerable time, particularly where court resources are under pressure. That does not mean every dispute should be diverted from the courts. It does mean that the likely time to judgment should be included in the client’s assessment.

Mediation can usually be arranged much sooner than a trial. Even where it does not resolve the entire dispute, it may resolve individual claims, reduce the number of issues or parties or produce agreement on some of the procedure to be followed. A partial resolution can reduce the time and expense of the remaining litigation.

This potential should not be overstated. A mediation that merely adds another event to the litigation timetable achieves little. However, when mediation is properly timed and parties are prepared to make decisions, its value does not depend on achieving a complete settlement during the session.

Frequently, parties and their counsel are able to negotiate without the assistance of a mediator. Most disputes that settle do so through direct negotiation at some stage. The involvement of a mediator does not suggest that counsel are incapable of negotiating. The critical consideration is whether negotiations have reached a stage where a mediator’s involvement may be beneficial.

A mediator can provide structure to the discussion, assist with communication, help the parties examine assumptions and speak privately with each side about risk and settlement options. Some mediations remain primarily distributive and turn largely on money. Even then, mediation can provide a disciplined setting for testing risk and making decisions.

Some disputes allow for broader outcomes than those available through court orders, such as revised business arrangements, payment terms, confidentiality provisions, or future protocols. Mediation is not merely a process of compromise, nor is it always focused on creative, interest-based solutions. Its value is determined by the specific requirements of the dispute and the willingness of the parties to engage.

We Need to Litigate

Not every decision to proceed with litigation reflects an unwillingness to consider settlement. Litigation may be the appropriate process where urgent relief is required, evidence or disclosure must be compelled, or a party needs an authoritative and public determination. A judgment may also be necessary where the legal issue affects other disputes, voluntary compliance is unlikely, or the remedy required cannot realistically be achieved through negotiation.

There are also cases in which meaningful mediation is not possible. A participant may refuse to attend; a party may be using the process to delay, or concerns about safety, capacity, coercion, or an imbalance of power may not be adequately addressed.

In other cases, the parties may already have made genuine efforts to settle and have reasonably concluded that an adjudicated result is required. The objective is not to discourage litigation, but to emphasize that the choice between litigation and mediation should be informed by a realistic understanding of the capabilities and limitations of each process.

Make a Deliberate Process Choice

Mediation is not suitable for every dispute, nor should it become a procedural box that must be checked in every case. It is one of several available processes, and its usefulness depends on the circumstances.

There are good reasons to litigate. A party may need urgent relief, compelled disclosure, a public ruling, an enforceable decision or an authoritative determination of an important legal issue. In those cases, litigation may not only be necessary but appropriate.

Equally, a decision not to mediate should follow an informed assessment of the dispute, the parties, the information available, the relief required, the likely time and cost and the realistic alternatives.

The central issue is not whether mediation is universally beneficial, but whether it has been seriously considered before parties commit to the time, cost, and uncertainty associated with adjudication.