You are going to settle. I say that to every business owner who calls me about a dispute with a supplier, a customer, a former partner, and most of them do not believe me, because the other side has just done something outrageous and settlement feels like surrender. The Superior Court of Justice keeps the numbers. In 2024 Ontarians started 75,561 new civil proceedings, more than 179,000 cases were still pending at year end, and 3,539 went to trial. That is under 5%. Every one of the others ended the way yours will: two sides signing a piece of paper. The only open question is how much you will have spent by the time you sign it.
The court knows this too. The Civil Rules Review’s final report of October 2025 describes a system in which some cases take ten years or more to resolve, sets a target of two years from the close of pleadings to a hearing, and proposes that parties be required to exchange documents and discuss early mediation before they are allowed to start a claim. Toronto and Ottawa have had mandatory mediation under Rule 24.1 since 1999, Windsor since 2002; the report would take it province-wide. In England the Court of Appeal went further in Churchill v Merthyr Tydfil (2023) and confirmed that a judge can order unwilling parties into mediation. The direction of travel is not subtle. You can wait to be sent, or you can go now, while going now still gets you something.
Why mediation before litigation works better than mediation during it
Mediation late in a lawsuit still settles cases. Ontario’s mandatory program settled 1,767 of 4,144 mediations in full in 2024, about 43%, with more settling in the weeks afterward. The original evaluation of Rule 24.1 by Robert Hann and Carl Baar found mediated cases disposed of faster and 85% of litigants reporting a positive effect on cost. So it works. It works less well than it could, and the reason is timing.
By the time a Rule 24.1 mediation happens, each side has paid a lawyer to draft pleadings that call the other a liar, has spent months building a record, and has told the story of the dispute so many times that the story has hardened into identity. The same evaluation found something that surprised the people running it: contract and commercial cases settled at mandatory mediation at roughly 21–36%, well below the 50–54% for wrongful dismissal and negligence claims. Business disputes are the cases that respond worst to mediation imposed after the lawsuit is under way. They are also the cases with the most to gain from mediation before it — because a supplier you still need, a customer you still want, or a co-founder you still share a cap table with is a relationship with a future, and a lawsuit is designed to end futures.
The commercial mediation numbers from the UK show what early, voluntary mediation looks like when it is the norm. CEDR’s Eleventh Mediation Audit (2025) counted about 21,000 commercial mediations a year, up 24% in two years, with 87% settling — 70% on the day and a further 17% shortly after — and estimated the savings to business at around £8 billion a year in fees, management time and lost productivity. Those are mostly disputes that never became trials because nobody let them.
Mediated settlements last longer than judgments
A settlement that the parties built themselves is one they tend to keep. Reviews of the U.S. civil studies put compliance with mediated agreements at 62–90%, higher than for adjudicated outcomes, and Ontario small-claims research found compliance of 93–100%. Kalter, Bollen and Euwema followed workplace mediations for a year in the Negotiation Journal (2018): 78% produced an agreement, and how reconciled the parties felt on the day predicted how reconciled they were twelve months later (β = 0.63). A judgment tells the loser what to do. A mediated agreement is something the loser agreed to, which is a different kind of instruction.
What the research says makes a good mediator
Ask a litigator which mediator to hire and you will usually be steered toward the retired judge or the senior counsel who will “knock heads together” — someone who will tell each side, privately, what their case is really worth. The CEDR audit confirms this is how mediators actually get chosen: lawyers ranked professional reputation and status first, then style, then sector experience. It is a reasonable way to pick a barrister. It is not what the outcome research supports.
The most careful work on mediator behaviour comes from Lorig Charkoudian and colleagues, who did not survey mediators about what they think they do but sat in the room, coded what the mediators actually did, and then followed the parties for a year. In Family Court Review (2018) they observed 130 court-connected mediations with 30 mediators. One set of behaviours — eliciting: asking the parties what solutions they would propose, then testing their reactions to each other’s ideas — was the only strategy associated with a higher likelihood of agreement. Directing — explaining the law, offering opinions, advocating a particular outcome — was associated with parties being more likely to file an adversarial motion within the next twelve months. Heavy use of caucus, the shuttle diplomacy where the mediator moves between separate rooms, raised trust in the mediator and lowered the parties’ hope that the dispute could be resolved.
The same team’s civil study in Conflict Resolution Quarterly (2019), on Maryland district-court cases, found the same pattern in a commercial setting: eliciting produced agreements and fewer returns to court; caucus-heavy mediations left parties feeling pressured and were significantly more likely to be back in court for enforcement; and mediators who offered evaluations were associated with lower satisfaction and a lower likelihood the parties would ever use mediation again. The mediator everyone asks for — the one who takes each side into a separate room and tells them the number — is the profile the data flags.
That does not mean evaluation is useless. A business dispute usually has a legal question inside it, and at some point someone in the room needs to be able to say what an Ontario court would probably do with a limitation clause or a shotgun provision. The skill is knowing when to say it, to whom, and whether the parties asked. A mediator with a commercial background who also knows how to keep the parties talking to each other is rarer than either half alone, and worth the search.
How to choose a mediator for a business dispute
| What to look for | Why it matters | How to check |
|---|---|---|
| Formal mediation training and a professional designation | Mediation is a discipline, not a personality trait. Training in a recognised program (the ADR Institute of Canada’s Q.Med/C.Med designations, or an established university program) means the mediator has been taught the eliciting and reflecting skills the research rewards. | Ask where they trained and how many hours. Look them up on the ADRIC or provincial roster. |
| Fluency in your kind of dispute | A shareholder deadlock, a distribution agreement gone wrong and a construction claim each have their own vocabulary and their own realistic range of outcomes. A mediator who has to be taught the deal cannot test whether a proposal is workable. | Describe your dispute in two sentences and listen to the questions they ask back. |
| A process that keeps you in the same room | The strongest predictor of both agreement and durability is the parties generating options together. Ask how much of the day will be joint session and how much caucus, and be wary of “I keep the parties apart from the start.” | Ask them to walk you through a typical day, hour by hour. |
| Preparation | Good mediators read the briefs, call each lawyer beforehand, and arrive knowing where the real gap is. Bad ones learn the file at 9 a.m. | Ask what they want from you before the mediation, and how long before. |
| Willingness to evaluate — on request, late, and in private | Sometimes a party needs to hear a realistic assessment before they will move. The mediator should be able to give one, and should be reluctant to. | Ask: “If we are stuck at 4 p.m., what do you do?” |
| No stake in the fight continuing | A mediator who also litigates in your sector may know the players; that cuts both ways. Independence from both sides, and from the lawyers, is non-negotiable. | Run a conflicts check and ask them to disclose prior dealings with anyone at the table. |
| Fees and format in writing | Commercial mediators charge a daily or half-daily rate, usually split equally. You want the rate, the preparation time and the cancellation terms before you commit. | Ask for the mediation agreement in advance and read it. |
When to raise mediation, and how
The moment to propose mediation is the moment you would otherwise send the demand letter. Say so in the letter: identify the dispute, state that you would prefer to resolve it privately, propose a mediator or a method for choosing one (each side names two, the other side strikes one), and set a date. Almost every well-drafted shareholder agreement and most commercial contracts already contain a dispute-resolution clause that requires this step, and a court will generally hold you to it. An unreasonable refusal to mediate can count against you later, when a judge is deciding costs. An early, reasonable offer never does.
Bring your lawyer, but bring the right instruction. Counsel at a mediation is there to make sure you understand your legal position and that what you sign is enforceable, not to win the day. If the dispute is with a co-owner, the tools are laid out in resolving a partner dispute without going to court and resolving a shareholder deadlock; if you are weighing the alternatives, mediation vs litigation for a business dispute sets them side by side, and how commercial mediation works covers the mechanics and the cost.
Where I fit
I have practised business law since 2001 and trained as a mediator at the Straus Institute for Dispute Resolution at Pepperdine, in its “Mediating the Litigated Case” program. I act in two ways. As a mediator, I take commercial and shareholder disputes where the parties want a neutral who understands the deal documents and can keep them at the same table. As counsel, I prepare business owners for a mediation someone else is running, on a fixed fee, so that you walk in knowing your numbers, your legal position and your walk-away point. The dispute resolution and mediation page sets out both.
The Ontario court system is telling you, in a 2025 policy paper and in the arithmetic of its own docket, that your dispute will end in a settlement. The mediator you choose decides whether it ends in one that holds. Ninety-five percent of the people ahead of you in the queue settled anyway. Most of them just paid for the trial first.
Common questions
Can a business dispute be mediated before a lawsuit is filed?
Yes. Mediation is a private, voluntary process and does not require a court file. In practice the earliest and most successful commercial mediations happen at the demand-letter stage, before pleadings are drafted and positions harden. Many commercial contracts and shareholder agreements require the parties to attempt mediation before litigating.
What percentage of business disputes settle without trial?
In Ontario, the Superior Court’s 2024 statistics show 75,561 new civil proceedings and 3,539 trials — under 5% of cases reach trial. The rest settle, are abandoned or are dismissed. Commercial mediation in the UK settles about 87% of cases, 70% on the day of the mediation and a further 17% shortly after, according to CEDR’s 2025 audit.
What makes a good mediator?
Peer-reviewed observational research (Charkoudian and colleagues, Family Court Review 2018 and Conflict Resolution Quarterly 2019) found that mediators who elicit solutions from the parties and keep them working together produce more agreements and fewer returns to court, while mediators who rely on giving opinions and on separate-room caucusing produce lower satisfaction and less durable outcomes. Look for formal training, fluency in your kind of dispute, a process that keeps the parties in the same room, and thorough preparation.
Should I choose a retired judge as my mediator?
Not automatically. A retired judge brings authority and a credible evaluation of the legal merits, which helps when one party is unrealistic. The research links heavily evaluative, caucus-based mediation to less durable settlements. For a commercial dispute where an ongoing relationship matters, a trained mediator with commercial experience who keeps the parties talking is often the better fit. Ask any candidate how they run the day.
What is the difference between facilitative and evaluative mediation?
A facilitative mediator helps the parties communicate, identify interests and generate their own options, without offering a view on who would win. An evaluative mediator assesses the strengths and weaknesses of each side’s case and may suggest a settlement range. Most experienced commercial mediators do some of each; the evidence favours facilitation as the default, with evaluation used sparingly and on request.
How much does commercial mediation cost in Canada?
Commercial mediators typically charge a half-day or full-day rate plus preparation time, usually split equally between the parties. A one-day mediation with counsel on both sides commonly costs each party a small fraction of what the same dispute would cost through discovery and trial. Get the rate, preparation time and cancellation terms in writing before you commit.
Is mediation mandatory in Ontario?
In Toronto, Ottawa and Windsor, most civil actions (other than family and certain excluded matters) are subject to mandatory mediation under Rule 24.1 of the Rules of Civil Procedure. The Civil Rules Review’s October 2025 final report recommends expanding mandatory mediation across the province and requiring parties to discuss early mediation before commencing a claim.
Do mediated settlements hold up?
Generally better than judgments. Reviews of U.S. civil studies report compliance with mediated agreements of 62–90%, and Ontario small-claims research found 93–100%. A signed mediated settlement is a binding contract and can be enforced by the courts like any other.