How Much Time Between Discovery And Mediation

Author(s): Stephen M. Birman

May 3, 2021

A common question that I receive from clients is “how much time should pass between discovery and mediation?”

Like everything else in law the answer is (drum roll, please) – “it depends.”

Once a lawsuit is commenced, the first significant step is an examination for discovery. The discovery is typically followed by a mediation (or settlement meeting).

Typically, it should not take more than 8 months, or so, to book discovery dates. However, I find that some defence lawyers (I am not going to name names) are making it very difficult to keep to those timelines. This is always subject to lawyers’ calendars, the number of lawyers involved and sometimes key documents that may take time to obtain.

Once discoveries are finally complete, the next question is typically “how long will it take to get my case to mediation?” In a perfect world (well, maybe not for mediators) there wouldn’t be a mediation and the claim would resolve itself through informal discussions or settlement meetings with the lawyers.

While mediation is usually required once a lawsuit has been commenced, I typically make some effort to try to resolve cases prior to mediation. I find that it is rare those efforts are successful, but there is certainly value in trying. If successful, both sides can save substantial legal costs and disbursement expenses. Even if not successful, those initial discussions will help both sides understand where the other side is coming from.

In the majority of cases that do require a mediation, the timeline for a mediation is usually within a year after discovery.

Frankly, it shouldn’t take a full year for the parties to comply with undertakings, obtain reports and be in a position to mediate, but there are many moving targets that come with scheduling a mediation. A mediation can be “forced” on the other side quicker in automobile cases where mediation is mandatory. However, it is not usually in anyone’s interest to force a mediation that is not likely to accomplish the ultimate goal of settlement.

If an insurer reasonably needs time to secure instructions, reports, their favourite mediator, or what have you, in order to be in a position to properly address settlement, an indulgence is typically granted. However, if I find that an insurer is delaying or isn’t likely to ever participate in a meaningful mediation, then I will want to force the mediation earlier, especially in mandatory mediation jurisdictions, like Toronto, where a mediation is required in order to set an action down for trial.

So, if you are a client and you just finished the stressful discovery process and want to know what is next, the answer is “it depends.” While it is typically reasonable to expect a mediation within a year, that is not always the case, and if you are not sure why your case is moving along a different timeline, for any number of reasons, then it is always best to call your lawyer and find out why.

Thomson Rogers offers free consultations so please feel free to reach out to us at any time. We are here to help.

Thomson Rogers partner Stephen Birman has been recognized as a Certified Specialist in Civil Litigation by the Law Society of Ontario, is listed in the peer-reviewed publications – Lexpert® and ranked AV pre-eminent in Martindale-Hubbell ®. Stephen’s practice focuses on personal injury litigation and class actions. You can reach Stephen at 416-868-3137 or by EMAIL.

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