The Ontario Mandatory Mediation Program (OMMP) was first introduced in 1991, and for over two decades now, mediation has been mandatory in certain jurisdictions in Ontario for most matters involving estates, trusts, and substitute decisions. The cities – Toronto, Ottawa, and the County of Essex are subject to mandatory mediation pursuant to and governed by rule 75.1 of the Rules of Civil Procedure, RRO 1990, O. Reg. 194.[1] [2]

The types of issues and applications subject to mandatory mediation are comprehensive. Rule 75.1.02(1)(b)[3] provides that mandatory mediation applies to the following proceedings:

• contested applications to pass accounts;
• the formal proof of a testamentary instrument, objections to issuing a certificate of appointment, the return of a certificate of appointment, claims against an estate;
• support of dependants under Part V of the Succession Law Reform Act;
• the Substitute Decisions Act, 1992;
• the Absentees Act, the Charities Accounting Act, the Estates Act, the Trustee Act, or the Variation of Trusts Act;
• subrule 14.05(3) if the matters at issue relate to an estate or trust; or
• subsection 5(2) of the Family Law Act. [4]

Mandatory mediation is thus necessary in estate disputes, encompassing will challenges, disputes over powers of attorney, and the equalization of net family property following a spouse’s death.[5]

The estate mediation process typically involves a trained neutral mediator who facilitates a discussion between the parties involved in an estate dispute, assisting them in communicating and striving towards a mutually satisfactory resolution.

One of the aspects that sets estate disputes apart from corporate and commercial disputes is the personal connection between parties, unlike typical corporate/commercial disputes, where there is little, to no personal connection between the parties, estate disputes are often tangled by emotions and a lack of objectivity in the decision-making process. Often, things like past family resentments, feelings of rivalry, resentment, and inadequacy, could cloud the judgements of those involved, meaning the true cause of the dispute may remain unclear or unrelated to the issues presented in the court documents. Since, the testator, who is in the center of the dispute is no longer available for consultation, or perhaps may be incapable of participating in a meaningful way. Many times, the disputing parties are only connected through the deceased or incapable person and would not otherwise wish to interact with one another. [6]

Advantages of Mandatory Mediation

The primary goal of a mediation is not to determine a winner or loser but to foster mutual understanding and develop tailored solutions that may not always be possible through trials. There could be several advantages of a mediation including:

Mediation can give both parties a chance to realistically evaluate their own and their opponent’s strengths and weaknesses. This evaluation leads to settlements or, where the cases do not settle, narrowing of issues in the dispute. Litigants often find mediation more satisfying than a trial because they get to play an active role in resolving their disputes.[7]

Since the mediation is informal and confidential the parties feel free to speak up more openly than they could at a trial. Where parties have an ongoing relationship, the more sympathetic nature of mediation could encourage cooperation and improve communication between parties than damaging the relationship.[8]

Since its introduction in 1999, the Ontario Mandatory Mediation Program (OMMP) has proven to be beneficial for both the court system and litigants. For the courts, mandatory mediation has significantly reduced the time required to resolve cases, with statistics indicating that 40% of cases are fully settled without the need for motions, pre-trials, or trials. Importantly, mandatory mediation imposes no costs on the government, as litigants bear the relatively modest expenses of the process.[9]

For litigants, mandatory mediation has enhanced access to justice. While parties are responsible to pay for mediation costs, the early resolution often results in quicker settlements and lower legal expenses overall. Even in cases that do not settle, early mediation helps reduce litigation costs by compelling parties to evaluate the merits of their cases early on. According to surveys conducted by the Ontario Bar Association (OBA), this cost-effectiveness benefits litigants significantly.[10]

When Mandatory Mediation might not be appropriate

While most estate disputes might benefit from a mediation, there are certain circumstances in which mandatory mediation might not prove to be the best option for both the parties, especially where there is – a significant power imbalance between the parties, there is fear of or history of any form of physical or sexual harassment, violence or abuse, if there is a chance one party may be bullied or coerced into agreeing into an unfair settlement, if one of the parties is known to be acting in bad faith, such as – avoiding disclosure, delaying the process, etc. and when one of the parties has a mental disability that impairs decision making or suffers from a substance abuse problem.[11]

Overall, mandatory mediation in Ontario estate disputes has proven to be a valuable tool for resolving conflicts efficiently and amicably over the years. By fostering open communication and encouraging tailored solutions, mediation helps reduce court backlogs while saving litigants time and expenses. However, its success hinges on the appropriateness of the process for the specific circumstances of the case. While most disputes benefit from the structured and neutral environment of mediation, certain dynamics—such as power imbalances or bad faith conduct—may necessitate alternative approaches. Ultimately, mandatory mediation offers a pathway to resolution that prioritizes understanding and collaboration, reaffirming its significance in the pursuit of equitable outcomes in estate law.

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[1] Monkhouse A. & He T. “Why we need to implement Province wide mandatory mediation in Ontario” Ontario Bar Association, online : PBA < OBA.org – Why We Need to Implement Province-Wide Mandatory Mediation in Ontario>

[2] Rules of Civil Procedure, RRO 1990, Reg 194, s 75.1.01, <https://canlii.ca/t/t8m#sec75.1.01>

[3] Rules of Civil Procedure, RRO 1990, Reg 194, s 75.1.02, <https://canlii.ca/t/t8m#sec75.1.02>

[4] Watters, Karen “Mandatory Mediation: Where, What, Why”, DeVries Litigation LLP, online: < https://devrieslitigation.com/mandatory-mediation-where-what-why/>

[5] Ibid

[6] Whaley, Kim “Best Practices in Estate Mediation and Documenting the Settlement” at pg. 3, Whaley Estate Litigation Partners, online: WEL <WEL-Best-Practices-in-Estate-Mediation-and-Documenting-Settlement.pdf>

[7] Monkhouse A. & He T. “Why we need to implement Province wide mandatory mediation in Ontario” Ontario Bar Association, online : PBA < OBA.org – Why We Need to Implement Province-Wide Mandatory Mediation in Ontario>

[8] Ibid

[9]  Ibid

[10] Ibid

[11] Office of Civil Rights “When is Mediation Inappropriate” Government of United States, online: Commerce. gov <When is Mediation Inappropriate? | U.S. Department of Commerce>