A System Under Strain

The backlog in Ontario’s civil courts has reached unsustainable levels, with motions and trials now routinely delayed for years before a date can even be secured. It was reported that as recently as November 2023, even short procedural motions in the Ontario Superior Court of Justice are being scheduled up to a year ahead, with long motions and trials pushed into 2024, deepening the procedural logjam^[1].  A March 2024 analysis by McCarthy’s highlighted how Toronto’s civil list now sees even short motions scheduled more than a year out, and referenced court commentary describing the system as being in a “dangerous state” due to widespread delays in both motions and trials^[2].

In my own experience, while hard statistics may be difficult to pin down, the day-to-day reality for litigants and lawyers is clear, that confidence in the civil court system is declining as delays grow longer and outcomes become less predictable. Shortages of judges, retirements outpacing appointments, COVID-era postponements, and ever-heavier dockets have combined to choke available court time.

The Ontario government has recognized that increasing judicial capacity is essential to reducing case backlogs and improving access to timely justice. In a 2024–25 initiative, the province committed over $29 million to appoint at least 25 new judges to the Ontario Court of Justice and hire approximately 190 more Crown prosecutors, victim support workers, and court staff ^[3]. These new appointments directly support the provincial strategy to expand province-wide Mandatory Mediation^[4], which depends on early resolution even before court timetables can catch up. As a mediator, I see this investment as a positive step. It suggests the government is not only improving court infrastructure but also acknowledging that early, meaningful negotiation, prior to the formal trial process, is now a central pillar of justice reform in Ontario.

In many mediations I conduct, counsel asserts that the session is the last, best chance to resolve the dispute before the meter starts running on the road to a full-blown trial, retaining duelling experts^[5], commissioning surveillance^[6], and marshalling unlimited legal resources. The funds earmarked for that arms race could just as easily bankroll a settlement that everyone can live with. I often hear the familiar refrain that a “good” mediation is one where both sides leave the room equally dissatisfied yet relieved, spared the prospect of financial ruin that can haunt an individual plaintiff for years. Better to shape your own outcome today than to cede control in two or three years to six strangers in a civil jury, picked “from a line-up at Tim Horton’s”, citizens with no legal training and no personal understanding of what the parties may have endured.

What Delay Means for Personal-Injury Files

For injured plaintiffs, a minimum four-to-five-year slog^[7] to trial is more than inconvenience. It could mean financial and emotional ruin. I recently mediated a lawsuit that arose as a result of a 2017 car accident! In these old cases, medical bills accumulate, wage loss accrues, memories fade, and evidence grows stale.  Insurers know this and, quite rationally, may calibrate offers against the plaintiff’s holding power.

Defence costs escalate quickly once a file slips into discovery limbo. I remember, early in my career as a young Bay Street associate, defending a motor vehicle case that dragged on for years while I brought eight successive motions to compel the plaintiff’s counsel to answer undertakings. Each motion, funded by the defendant’s insurer with no hope of recovering its costs against the impecunious plaintiff, resulted in yet another order threatening dismissal, until the Court finally struck the action. I still recall walking over to serve the 8^th and final motion record on the plaintiff’s counsel myself. His only secretary was out to lunch, and he waved me into his office, where accordion files formed a canyon from the door to his desk. The file had become a monument to delay. It is a vivid reminder that everyone pays the price when resolution is deferred—defendants, insurers, plaintiffs, and the public alike. Mediation offers a critical off-ramp. Before costs balloon and trial prep begins in earnest, it is often the last best opportunity to settle a case with certainty, efficiency, and dignity.

Mediation: The Practical Release Valve

Against that backdrop, mediation has become the practical release valve in a system under strain, the functional last stop before trial. Unlike the courtroom, a mediation can often be scheduled within months rather than years, offering a much-needed alternative to endless delay. I often joke with my partner Dan, who coordinates all of my mediations, that I am willing to mediate on 24 hours’ notice, even if it means pulling over to do it on the side of the road. A good mediation, with prepared counsel, keeps costs in check, avoiding the expense of subpoenas, expert testimony, and protracted trial preparation. The process is private and flexible, allowing parties to craft solutions that courts cannot order, such as structured settlements, staged payments, confidentiality terms, or non-monetary concessions. Most importantly, mediation brings finality. Both sides leave the room with certainty, having taken control of the outcome rather than gambling it on an overburdened and unpredictable court system.

Practical Tips for Counsel Preparing to Mediate in 2025

With the seismic changes to Ontario’s Rules of Civil Procedure that are anticipated to be coming very soon^[8], counsel preparing to mediate in 2025 should approach the session with the same level of readiness as they would for trial, given that a courtroom appearance may still be years away. That means front-loading the mediation brief with the strongest available evidence—recent expert reports, updated proof of income loss, and current life-care budgets that reflect today’s realities.

It is equally important to quantify the real cost of delay. Be ready to articulate the financial toll of waiting, including accumulating interest on disbursements, ongoing treatment costs, and the diminished present value of future loss. Technology can be a powerful ally in this setting. Video messages from treating professionals or family members can add a human dimension to injuries that might otherwise remain invisible on paper. Where possible, parties should also aim to resolve all issues globally, whether tort, accident benefits, or subrogated claims, to avoid parallel delays. One of the benefits of ODR coordinator-assisted mediation is the ability to mediate matters involving multiple claims with many parties^[9]. And if resolution proves elusive on the day, counsel should not let the opportunity slip away entirely. A follow-up mediation date should be scheduled before calendars fill and momentum is lost.

Looking Ahead

As medical science evolves and our understanding of chronic pain, PTSD, and other invisible injuries deepens, courts are under growing pressure to revisit how general damages are assessed. The Civil Rules Review Working Group has taken up that challenge. The Ontario’s Civil Rules Review released April 2025^[10] is actively considering reforms that aim to shift meaningful settlement discussions to the earliest stages of litigation. One of the key proposals is the adoption of an up-front evidence model (see pp. 27–33), which would require parties to exchange core documents and witness summaries early in the process. The objective is to enable both sides to assess the strengths and weaknesses of their case based on real, substantive disclosure, long before trial dates are even in view. The review also recommends the introduction of a mandatory early scheduling conference (p. 41), to be held within the first year of an action being commenced. This conference would be judge-led and focused on establishing timelines and canvassing early settlement opportunities before litigation costs escalate.

Importantly, the review calls for the expansion of mandatory mediation province-wide (pp. 59–62), moving beyond the current Toronto, Ottawa, and Windsor jurisdictions. The proposal has found strong support within the bar and emphasizes the need for more evaluative-style mediation to help parties confront risk, test assumptions, and move toward resolution. These recommendations reflect a growing consensus that early, well-informed settlement dialogue is not just ideal, it is essential to the efficient functioning of the civil justice system in Ontario. These reforms echo a core lesson from my own practice experience, that early, well-informed dialogue is the surest path to fair resolution.

As a mediator, I now deploy the same empathy-anchored valuation exercise I once used with clients, inviting each side to picture the most catastrophic injuries our courts have compensated and then place their own case on that continuum. Coupled with the Civil Rules Review’s call for earlier disclosure and province-wide mediation, this approach helps parties cut through positional posturing, quantify delay risk, and reach settlements that reflect both precedent and the human cost of litigation.

For mediators, lawyers, and insurers, the message is clear: stay ahead of the curve, embrace front-loaded evidence, and rely on empathy-driven negotiation to reach just, practical outcomes before the court backlog forces justice to wait. At Patey Mediations, we take a collaborative, team-driven approach—focusing on people, not just problems—to help parties resolve disputes with clarity, dignity, and momentum.