Mediation in Ontario Personal Injury Litigation: When to Settle and When to Fight

Why Personal Injury Cases Settle at Mediation

Over 95% of Ontario personal injury claims resolve before trial, and most of those settle at or around mandatory mediation. Settlement is not a failure of the legal process; it is a rational response to uncertainty, expense, and the emotional toll of litigation. Understanding why cases settle — and what makes a particular settlement fair — is essential for any plaintiff considering their options.

Mandatory Mediation

Under Rule 24.1 of Ontario’s Rules of Civil Procedure, civil actions in Toronto and Ottawa — including personal injury cases — are subject to mandatory mediation within 180 days of the close of pleadings. A LSRA-accredited mediator facilitates structured settlement discussions. Mediation is non-binding: either party may walk away without penalty, other than the cost of the session.

What Happens During a Mediation Session

A full-day personal injury mediation typically begins with opening statements from each counsel. The mediator then holds private caucuses with each side, probing strengths and weaknesses, exploring settlement ranges, and shuttling between rooms to negotiate. A skilled mediator candidly identifies the risks each party faces. Sessions often run six to eight hours; complex cases may require multiple days.

Evaluating Whether a Settlement Is Fair

A settlement should be evaluated against your lawyer’s realistic assessment of the range of trial outcomes, discounted for litigation risk. Factors include: strength of liability evidence; persuasiveness of medical evidence on threshold and quantum; credibility of both parties; jurisdiction’s jury tendencies; and the time value of money given expected timelines. Your lawyer should model these variables before recommending acceptance or rejection of any significant offer.