Legislation
Rule 21.1.5
deals with a failure to comply with signed agreements
What is Dispute Resolution Clause?
how parties will address future disputes
helps to retain the self-determination that the parties intended by entering mediation in the first place
Fewer v. Fewer
where an agreement reached at mediation and confirmed by subsequent email correspondence was deemed to be an enforcement
Pro to Self-Representation
Cost less monies
Self-Represented Parties General
- high chance of power and knowledge imbalance
- discuss implications of mediating against self-represented party with your client
Rule 49.10
encourages parties to settle matters out of court and to assess the reasonable amount to resolve the disputes, taking into consideration factors such as the amount of the claim, how much time, effort, and money will be spent on litigation
Confidentiality Clause
may aid in ensuring that all parties do not reveal details of settlement
prevents parties from speaking ill of each other in the future
Rawlins v. Rawlins
Is a case from the Ontario Superior Court of Justice that made it clear that would set aside settlement agreements only where there is strong evidence of fraud, bad faith, or mistaken instructions.
Benefits to Choosing a Mediator
- do they possess specific skills
- can choose to have multiple Mediators
- Find ones that have the right personality for the subject matter
Con to Self Represented Opposing Party
- simple language required depending on education level
- ensure the mediator is not biased
- if you sense unfairness, raise the issue with the mediator
Rule 420
3) Where a plaintiff makes a written offer to settle and obtains a judgment as favourable or more than the terms of the offer to settle, the plaintiff is entitled to party-and-party costs to the date of service of the offer and costs calculated at double that rate, but not double disbursements, after that date.
Release Clause
allows the parties to move forward and leave mediation with the knowledge that the issues have been settled
"the devil is in the details"
Olivieri v Sherman
The Ontario Court of Appeal confirmed that a settlement agreement is subject to the general law of contract regarding offer and acceptance. A court must enforce the contract if (1) there was a mutual intention to create a legally binding contract and (2) the parties reached an agreement on all of the essential terms of the settlement.
Parties with Disabilities
All mediations should be made accessible to disputants with disabilities, and reasonable accommodations should be made to the mediation process
Multiple Advocates
Can be difficult to find times that works for every paralegal or lawyer and can be difficult to get all clients to agree to the same settlement
What is the legislation called that introduced requirements for the enforceability of mediated settlements?
The Rules of Civil Procedure
Boulanger v. Great West Life Assurance Company
Where the Ontario Court of Appeal upheld a settlement agreement reached at mediation where the appellant was repented and where the agreement was a complete answer to the appellant's attempt to continue her claims against the respondent
Multi-party mediation benefit
- Financial Responsibility can be determined based on percentage of fault
- Not the sole responsibility is on one individual
Rule 75.1.12 Agreement
if there is an agreement resolving some or all of the issues in dispute, it shall be signed buy the designated parties or their lawyers
Ramdial v. Davis
where the court dismissed an appeal to set aside a settlement agreement reached at mediation despite the absence of a formal valuation of certain properties. The court reiterated the importance of the need to respect private arrangements made on marriage breakdown