Mediation can be an extremely useful tool to resolve estate litigation in a more cost effective and timely manner. What may come as a surprise to many however is that although the government has directed mediation is mandatory in estate litigation under certain circumstances, under rule 75.1 of the Rules of Civil Procedure it is only mandatory for mediation to occur if your matter is commenced in Toronto, Ottawa, or Essex (i.e. Windsor). This leaves significant population areas without mandatory mediation, including most of the Greater Toronto Area including Mississauga, Brampton, Markham, and Oshawa, as well as places such as London or Kingston.
Although mediation is always possible if the parties agree to attend voluntarily regardless of location, is it possible for the court to direct the parties to attend mediation if the matter was commenced in a jurisdiction not subject to mandatory mediation? Under a relatively recent change to the Rules of Civil Procedure the answer appears to be yes.
Rule 75.06(3.1)(b) of the Rules of Civil Procedure provides the court with the power to direct parties to attend mediation in jurisdictions in which it is not mandatory, stating that on an Application or Motion for directions under rule 75.06 the court has the following authority:
“in the case of a proceeding that is not subject to Rule 75.1, order that a mediation session be conducted in accordance with Rule 75.2, and, for the purpose, give any direction that may be given under subrule 75.1.05 (4).”
Rule 75.2 of the Rules of Civil Procedure provides the court with further power to direct how the mediation ordered under rule 75.06(3.1)(b) is to occur, with rule 75.2.03(4) noting the court has the ability provide direction on such matters including the timing of the mediation, the issues to be mediated, and who is to pay for the mediation. Rule 75.2.04 also provides the court with the authority to choose who is to act as Mediator in the event the parties are unable to come to an agreement.
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