Television dramas often portray civil litigation as a series of tense courtroom arguments, surprise witnesses, and dramatic verdicts. In reality, many civil lawsuits are resolved without a full trial.
Most civil lawsuits in Ontario settle before trial. A dispute may be resolved through direct negotiations, mediation, a pre-trial conference, or an agreement reached at another stage of the litigation process. Whether a particular case will settle depends on the facts, the available evidence, the parties’ legal positions, and their willingness to compromise.
For many civil actions commenced in Toronto, mandatory mediation is built into the litigation process. Mediation gives the parties an opportunity to discuss a possible resolution with the help of a neutral mediator before the case reaches trial.
At Powell Litigation, we help clients evaluate settlement opportunities while preparing their cases carefully in the event that a trial becomes necessary.
Why Do Civil Lawsuits Often Settle Before Trial?
A settlement is an agreement between the parties that resolves some or all of the issues in dispute. Settlement discussions can take place at nearly any stage of a civil lawsuit, including before a claim is filed, during examinations for discovery, at mediation, during a pre-trial conference, or even after a trial has begun.
There are several reasons parties may prefer to settle rather than leave the outcome entirely in the hands of a court.
Litigation Costs
Preparing for trial can require significant legal work. Depending on the case, the parties may need to review extensive records, conduct examinations for discovery, retain expert witnesses, prepare motions, organize evidence, and attend a multi-day or multi-week trial.
Reaching a reasonable settlement can reduce the additional legal fees and disbursements associated with taking the case through trial.
Time
Civil litigation can take considerable time to resolve, particularly when a case involves multiple parties, complex evidence, expert opinions, or scheduling delays.
A negotiated settlement may provide a faster resolution and allow the parties to move forward without waiting for a trial date and final judgment.
Uncertainty
Even when a party believes it has a strong case, no trial result is guaranteed. Witness credibility, evidentiary rulings, expert testimony, legal interpretation, and the judge’s assessment of the facts can all affect the outcome.
Once the dispute is placed before a judge, and in some cases a civil jury, the parties lose control over the final decision.
Privacy
Court hearings and judgments are generally part of the public record. A trial may involve the disclosure of business information, financial records, personal communications, or other sensitive evidence.
A settlement can offer greater privacy, particularly when the parties include appropriate confidentiality terms in their agreement. However, confidentiality is not automatic and should be clearly addressed in the settlement documents.
Control Over the Outcome
A court typically determines which party succeeds and what legal remedy should be awarded. Settlement allows the parties to negotiate terms tailored to their needs.
Depending on the dispute, a settlement might include payment terms, the return of property, changes to a business arrangement, confidentiality obligations, releases, or another practical solution that a court might not order after trial.
What Are the Possible Drawbacks of Settlement?
Settlement is not necessarily the right choice in every case. A proposed agreement may require a party to compromise on the amount of compensation, accept payment over time, or give up the opportunity to obtain a public judgment.
There may also be cases in which:
- The parties disagree significantly about the facts or value of the claim
- One party refuses to negotiate reasonably
- Important legal rights or principles are at stake
- Urgent court orders are required
- A party needs a binding judicial determination
- The proposed settlement does not adequately protect the client’s interests
The decision to settle should be based on a realistic assessment of the evidence, litigation risks, potential recovery, projected costs, and the client’s goals.
Is Mediation Mandatory for Civil Lawsuits in Toronto?
Ontario’s Rules of Civil Procedure provide for mandatory mediation in many civil actions commenced in Toronto, Ottawa, and Windsor.
However, mandatory mediation does not apply to every type of case. Certain proceedings and categories of claims may be excluded or subject to different procedures. A lawyer can determine whether Rule 24.1 applies to a particular lawsuit.
When mandatory mediation does apply, the parties are required to participate in the process within the applicable procedural timeline unless the court orders otherwise.
Even when mediation is not mandatory, the parties may voluntarily agree to attend mediation if they believe it could help resolve the dispute.
What Does a Civil Mediator Do?
A mediator is a neutral third party who helps the parties communicate, identify the main issues in dispute, evaluate litigation risks, and explore whether a mutually acceptable resolution is possible.
The mediator does not:
- Act as a judge
- Decide who is right or wrong
- Issue a binding ruling
- Force either party to settle
- Provide independent legal advice to either side
Instead, the mediator manages the negotiation process and may ask questions, identify areas of agreement, test the parties’ assumptions, and discuss the risks each side may face if the lawsuit continues.
The parties remain responsible for deciding whether to accept or reject a settlement proposal.
What Happens During a Civil Mediation Session?
The format of a mediation can vary depending on the mediator, the dispute, and whether the session is conducted in person or virtually. However, civil mediation commonly includes the following stages.
Preparation and Mediation Briefs
Before the mediation, each party’s lawyer will usually prepare a written mediation brief. The brief may summarize the background of the dispute, the important evidence, the legal issues, the damages being claimed, and the party’s position on settlement.
The lawyer should also review the strengths and weaknesses of the case with the client and discuss possible settlement ranges or terms.
Opening Discussions
Some mediations begin with a joint session attended by the parties, their lawyers, and the mediator. The mediator explains the process, and the lawyers may provide brief opening statements describing their clients’ positions.
Other mediations move directly into separate private meetings.
Private Caucuses
The parties often separate into private rooms or virtual breakout rooms. Each lawyer remains with their client to provide advice throughout the negotiations.
The mediator meets privately with each side to discuss the case, convey offers, ask questions, and explore possible solutions. Information provided privately is generally not shared with the other side unless permission is given.
Settlement Negotiations
The mediator may move between the parties to communicate offers and counteroffers. Settlement discussions may involve more than a single monetary figure.
The parties may negotiate payment schedules, releases, confidentiality clauses, business arrangements, responsibility for legal costs, or other terms relevant to the dispute.
Documenting an Agreement
When the parties reach a settlement, the essential terms should be recorded in writing.
Depending on the case, the parties may sign minutes of settlement during the mediation and later prepare more detailed settlement, release, or dismissal documents. The lawyers should ensure that the written terms accurately reflect the agreement before the parties sign.
Once properly documented, a settlement may be legally binding.
What Happens If Mediation Does Not Resolve the Case?
Mediation does not always produce a settlement. If the parties cannot reach an agreement, the lawsuit continues through the ordinary litigation process.
Depending on the stage of the case, the next steps may include:
- Completing examinations for discovery
- Answering outstanding undertakings
- Obtaining expert reports
- Bringing or responding to motions
- Participating in further negotiations
- Preparing for a pre-trial conference
- Proceeding to trial
An unsuccessful mediation does not necessarily mean the case will ultimately go to trial. The parties may continue negotiating afterward, particularly as additional evidence becomes available or the trial date approaches.
What Is a Pre-Trial Conference?
If a civil case remains unresolved and proceeds toward trial, the parties will generally attend a pre-trial conference.
A pre-trial conference is conducted by a judge who will not ordinarily be the judge hearing the trial. Its purposes may include:
- Exploring whether the case can be settled
- Narrowing the factual and legal issues
- Identifying agreed facts
- Reviewing the witnesses and expert evidence
- Estimating the anticipated length of trial
- Determining whether the case is ready to proceed
The pre-trial judge may provide a candid assessment of the issues and encourage the parties to reconsider their settlement positions. However, the judge does not force the parties to settle.
Some cases resolve at the pre-trial conference or shortly afterward. Others continue to trial.
Why Trial Preparation Can Strengthen Settlement Negotiations
Preparing a case for trial does not mean that settlement has been abandoned. In many situations, thorough trial preparation improves a party’s negotiating position.
When the opposing side understands that the evidence has been organized, witnesses are prepared, damages are supported, and counsel is ready to proceed, it may be more willing to make a realistic settlement proposal.
Effective preparation also helps a client evaluate settlement offers more accurately. A lawyer who understands the strengths, weaknesses, costs, and potential outcomes of the case can provide more informed advice about whether a proposed agreement is reasonable.
At Powell Litigation, cases are prepared with both possibilities in mind: achieving a practical settlement where appropriate and presenting the case effectively in court when a fair resolution cannot be reached.
Speak With a Toronto Civil Litigation Lawyer
Being involved in a civil lawsuit does not automatically mean that your dispute will end in a courtroom trial. Many cases are resolved through negotiation, mediation, a pre-trial conference, or another settlement process.
The appropriate strategy depends on the facts of the dispute, the available evidence, the conduct of the opposing party, and your financial and practical objectives.
The Toronto civil litigation lawyers at Powell Litigation can assess your case, explain your resolution options, represent you during settlement negotiations and mediation, and prepare your matter for trial when necessary.
Contact Powell Litigation to discuss your dispute and the most practical path toward resolving it.
Frequently Asked Questions About Civil Lawsuit Settlements and Mediation
Will my civil lawsuit definitely settle before trial?
No. Many civil lawsuits settle, but there is no guarantee that the parties will reach an agreement. Some disputes proceed to trial because the parties disagree about liability, damages, evidence, or acceptable settlement terms.
Can I be forced to accept a settlement at mediation?
No. A mediator cannot force a party to settle or impose a decision. Each party decides whether to accept or reject a proposed agreement after consulting with legal counsel.
Is mediation confidential?
Mediation discussions are generally confidential and conducted on a without-prejudice basis, subject to applicable laws and any mediation agreement. This usually means that settlement discussions cannot later be used as evidence to prove liability. A lawyer can explain the specific confidentiality rules that apply.
Do I need a lawyer during civil mediation?
Although parties may sometimes participate without counsel, having a civil litigation lawyer can help protect your interests. Your lawyer can prepare the mediation brief, assess settlement proposals, advise you about litigation risks, negotiate terms, and review any agreement before you sign it.
What happens if I reject a settlement offer?
The lawsuit may continue toward trial. Formal settlement offers can also have consequences for legal costs under Ontario’s Rules of Civil Procedure, particularly if the eventual trial result is less favourable than an offer that was previously rejected.
Can a lawsuit settle after mediation fails?
Yes. Settlement discussions can continue after an unsuccessful mediation. Cases may resolve during discovery, after expert reports are exchanged, at a pre-trial conference, shortly before trial, or even after the trial has begun.
How long does civil mediation take?
Some mediations last several hours, while more complicated disputes may require a full day or multiple sessions. The length depends on the number of parties, complexity of the issues, amount of evidence, and progress of the negotiations.
Legal Disclaimer
This article is provided for general informational purposes only and does not constitute legal advice. Reading this content does not create a solicitor-client relationship with Powell Litigation.
Every civil dispute is different. Whether a case will settle, proceed to mediation, or require a trial depends on its particular facts and circumstances. Anyone involved in a civil lawsuit should consult an experienced Ontario civil litigation lawyer for advice tailored to their situation.