Mediation that Moves: How to Avoid Mediation Stalls

Most lawyers and insurance professionals don't need convincing that mediation is valuable. It is the most effective tool to resolve litigation files in Ontario. The problem isn't whether to mediate - it is how to make mediation work better.

As a neutral, I've seen what stalls progress and what drives resolution. Below I'll outline some avoidable friction points - and how you can overcome them to move your files forward:

1. Starting Without a Strategy (or Sharing One)

Some parties treat mediation like a formality: show up, repeat the pleadings, wait for the numbers to converge. But that rarely gets the job done.

What works better:

• Pre-mediation strategy calls (even brief ones) with the mediator. This helps clarify tone, personality dynamics, and opportunities for early movement.

• Clear articulation of resolution goals in your brief. Not just what you want, but how flexible you are and what really matters.

• Private signals about potential creative settlement options - before the day starts.

The best lawyers give their mediator the tools to work effectively before 10 a.m.

2. Ignoring the Non-Monetary Tension

Even in money cases, emotions and misunderstanding drive deadlock - especially for self-represented plaintiffs or those new to the process.

What works better:

• Counsel: prep your client not just on the merits, but on the structure and feel of the day.

• Adjusters: don't underestimate how much tone influences timing. A Well-delivered offer can do more than its number suggests.

• Mediators: Acknowledge emotion, but don't dwell on it. Reframe the discussion around options, not blame.

Mediation isn't therapy. But people don't settle when they feel dismissed.

3. Process Fatigue

If parties aren't aligned on process, mediation loses steam. Long delays, unstructured bargaining, and backloaded decision-making lead to frustration - and sometimes impasse.

What works better:

• Mediators who explain the process clearly at the outset, especially to the plaintiffs.

• Pacing offers so there's movement in each round - even if symbolic.

• Lawyers who prepare their clients for the likelihood of "thinking time" and manage expectations about timelines and silence.

Momentum is built - or lost - in the middle of the day. That's where a deal is made or missed.