What to Expect in Mandatory Mediation in Small Claims Court
A Guide to Settlement Conferences in Ontario for Self-Represented Litigants
This blog is to help you prepare to attend a mandatory mediation session in relation to a legal dispute.
What is a Settlement Conference?
Every disputed action brought in Small Claims Court in Ontario must participate in mediation. This mandatory mediation is known as a settlement conference and is regulated by Rule 13 of the Rules of the Small Claims Court.
The settlement conference is administered by Small Claims Court and the mediator is a Deputy Judge. It is an informal discussion with a knowledgeable, neutral, third-party, in contrast to a trial.
The Purpose of the Settlement Conference
According to Rule 13.03 of the Rules of the Small Claims Court:
The purposes of a settlement conference are,
(a) to resolve or narrow the issues in the action;
(b) to expedite the disposition of the action;
(c) to encourage settlement of the action;
(d) to assist the parties in effective preparation for trial; and
(e) to provide full disclosure between the parties of the relevant facts and evidence
In other words, the settlement conference provides the parties with a neutral assessment of the case without a binding decision. For example, the Deputy Judge might ask questions about the supporting evidence, how a party arrived at the amount of money in dispute, or instruct that certain legal procedures must be followed. The Deputy Judge may also give a frank evaluation that the claim or the amount of money is unreasonable or inflated. Since the goal is to settle the action, parties may be expected to come with an offer to settle or a counter-offer.
The parties are given insight into how a Deputy Judge might view the case if it goes to trial. Parties should consider the Deputy Judge’s assessment carefully and modify their expectations accordingly even though the settlement conference does not produce a final decision. If you think your claim is worth $25,000, but during the settlement conference the Deputy Judge points out flaws in your case and believes it is worth only $5,000, you should reconsider how much you are willing to accept.
Furthermore, the Deputy Judge will help you to prepare for trial. Unlike TV shows that depict surprise evidence, you must disclose all evidence to the Court and the other side before the trial. If the Deputy Judge orders you to produce (or disclose) certain evidence and you fail to do so, you will not be permitted to introduce that evidence at trial.
Attending the Settlement Conference
Once the defendant files and serves the defence, the Court will schedule a settlement conference. All parties will receive a Notice of Settlement Conference, with the date and location of the settlement conference.
You must attend the settlement conference. If you know that you cannot attend on that day, you must notify the other side, and ask to reschedule, which is known as seeking an adjournment. To seek an adjournment, you can call the number provided on the Notice of Settlement Conference. If at the last minute, you are prevented from attending, you should send someone to the settlement conference to seek an adjournment in person.
If you received Notice of the Settlement Conference and do not attend, another Settlement Conference will be scheduled. Furthermore, the Deputy Judge can penalize you by ordering you to pay up to $100 in legal fees to the other party, which is called awarding costs.
How to Prepare for the Settlement Conference
You should be prepared to support your claim or defence, and have all evidence ready. When you receive the Notice of Settlement Conference, you will also receive a blank copy of Form 13A List of Proposed Witnesses. If there are any witnesses who have knowledge of the dispute whom you would like to bring to trial, you must fill out this form, serve it on all the parties, and file it with the court at least 14 days before the settlement conference.
If you have any other evidence you want to use at trial that you did not include in your claim or defence, you must also provide copies of this evidence along with the List of Proposed Witnesses 14 days before the settlement conference. The evidence could be receipts, photographs, videos, a police report, medical records, etc.
You should also bring your copy of the Plaintiff’s Claim, the Defence, your List of Proposed Witnesses, and the other side’s List of Proposed Witnesses to the Settlement Conference.
What to Expect at the Settlement Conference
Many Small Claims Courts in Ontario are in courthouses with other levels of court (Toronto is a notable exception). When you arrive at the courthouse, you will need to inquire at the front desk about where your Small Claims Settlement Conference will be held. They may ask for the title of your proceedings (which is the name of your action).
When you find the room number, there will be a sheet with the schedule (court docket) for that day. Your action should be on the list. Wait until your matter is called before entering the room. Be prepared to wait for several hours because the time on your Notice of Settlement Conference is not exactly when you will be called. Many Small Claims Courts organize their court dockets into morning sessions and afternoon sessions, e.g. 9:00 am and 1:00 pm. Therefore, there might be several settlement conferences scheduled for 9:00 am, which will be called one after the other. For example if your action is third on the court docket for 9:00 am, you may not be called until 11 am. The Small Claims Court in Toronto is an exception with a specific time slot for each settlement conference, however it is still not an exact time as settlement conferences may go over time or parties may fail to show up.
If you bring a friend as moral support while you wait, if that person has any direct knowledge of the dispute and you would like to use them as a witness, then s/he cannot enter the Settlement Conference room.
The settlement conference will be held in a meeting room, rather than a courtroom. Parties will sit on opposite sides of a long table. You should address the Deputy Judge as “Your Honour” and stand up when you are speaking.
Each settlement conference is different, and varies depending on the Deputy Judge. The Deputy Judge may introduce himself or herself, and explain the purpose of the settlement conference. Then s/he will ask each party to introduce themselves and their position, or version of the claim. Be ready to answer questions about the case or respond to the other side. The Deputy Judge may try to get the parties to settle, make orders about the production of evidence, or instruct that certain legal procedures be followed. If the parties are ill-prepared for the settlement conference, the Deputy Judge may order an additional settlement conference.
The settlement conference is completely confidential, in order to encourage the parties to have a frank discussion with each other and with the Deputy Judge. If you go to trial, it will be before a different Deputy Judge. Anything that was discussed at the settlement conference cannot be brought up at trial until after the decision is made, with the exception of any orders from the court about the production of documents.
After the settlement conference, you will receive a copy of an Endorsement Record/Order of the Court.
The settlement conference is not the only opportunity to settle the case. After the settlement conference, you may continue to negotiate with the other parties to reach an agreement.
The Ministry of Attorney General produced a Guide to Getting Ready for Court
If you are a low-income individual who is self-represented and you would like some pro bono (free) legal assistance, you should contact Law Help Ontario
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