Ontario stands at the edge of a civil justice crossroads^[1]. With a sweeping overhaul of the Rules of Civil Procedure on the horizon^[2], lawyers, litigants, and mediators are being asked to embrace a new mindset, one that sees conflict not as a linear march toward trial, but as a problem to be solved earlier, smarter, and with greater humility. At the heart of this shift is a proposition that, for many, still feels radical: early mediation^[3].

It is not new. Nor is it unproven. But what it does require is something that many in the legal profession have been trained to resist: a leap of faith. Faith that not every case needs exhaustive discovery before it can settle. Faith that positions can soften before they entrench. Faith that truth, resolution, and even justice can emerge without affidavits three inches thick.

This article examines why early mediation deserves to be embraced as a central plank in Ontario’s evolving civil procedure, and how taking that leap of faith may ultimately save clients time, money, and heartache.

The Current Culture: Delay as Strategy

Litigation in Ontario has long rewarded the slow burn. Parties file pleadings, engage in document exchange, wait for discoveries, then argue about motions, often for years, before finally entering settlement discussions. For personal injury files, this might include waiting on the production of accident benefits files, the scheduling of multiple medical-legal assessments, or surveillance packages that appear just before pre-trial.

This approach has always favoured delay. Insurers and defendants gain time to investigate and depreciate claims. Plaintiffs and counsel wait for a “picture to develop” before assessing risk. The notion that parties might enter a serious negotiation within the first days, weeks or months of a claim is often dismissed as premature.

But in doing so, we burn resources—human, emotional, and financial. The civil system clogs. Clients grow disillusioned. And public confidence in the justice system erodes.

The Coming Reform: Early Case Resolution

The Ontario Superior Court’s recent consultation paper on civil procedure reform signals a shift^[4]. Among the proposed changes: earlier case management, earlier expert disclosure, earlier trial dates, and even a cultural reorientation toward resolving disputes before they mature into litigation.

If these reforms take root, mediation, particularly early mediation, will no longer be an elective detour. It will be part of the main road. And those who refuse to engage early, or who use delay as a tactic, may find themselves out of step with both procedural expectations and judicial patience.

It is into this moment that early mediation steps not as an experiment, but as a discipline. One that demands preparation, creativity, and perhaps most of all, courage.

What Is Early Mediation?

Early mediation refers to a structured, confidential negotiation process that occurs before the parties have exchanged full discovery and, in some instances, even before a statement of claim has been issued. It may be initiated at various stages in the life of a dispute,  sometimes before pleadings are closed, sometimes within days or weeks of commencing a claim, or even in response to the pre-litigation 90 day letter of claim^[5]. In other cases, early mediation can follow a triggering event such as a denial of insurance coverage or a breakdown in contractual obligations.

What distinguishes early mediation from other forms of settlement discussion is its intentionality. It is not an ad hoc conversation or a premature attempt at resolution. Rather, it is a disciplined process designed to yield results, even in the absence of a fully developed evidentiary record. Crucially, early mediation is not uninformed. For the process to work, parties must commit to exchanging sufficient information to support meaningful dialogue. This typically involves disclosing key documents, such as relevant policies, contracts, medical records, or incident reports, that speak directly to liability or damages. In many cases, parties will also exchange concise position letters or summaries of their legal and factual risk assessments. Settlement ranges and key issues can be identified in advance, so that the mediation is focused rather than exploratory.

What early mediation deliberately avoids is the procedural trench warfare that so often characterizes traditional litigation. It is a conscious departure from the mindset that insists on exhaustive discovery, multiple expert reports, and entrenched legal positions before settlement can even be entertained. Instead, it invites parties to the table while there is still flexibility, realism, and an appetite to resolve.

The Benefits: Why It Can, and Will, Work

Every litigator understands the cost curve: the longer a case drags on, the more it costs. As litigation progresses, expenses escalate rapidly. Expert reports become necessary, retainers balloon, and trial preparation consumes countless billable hours. Early mediation interrupts that trajectory. By intervening before the machinery of litigation kicks into high gear, clients can preserve their financial resources. Expert retainers can often be deferred or even avoided altogether. Surveillance, a common, and for the insurer expensive, feature in personal injury and insurance litigation, may become irrelevant. Most importantly, legal fees stay proportionate to the actual value of the dispute, rather than snowballing into disproportionate territory.

Beyond dollars and cents, early mediation can also protect relationships. In commercial, employment, and estate matters, parties often have histories with one another. These aren’t just files, they’re people who may need to continue working together, running a business, or managing a shared inheritance. Early mediation provides an opportunity to resolve disputes before resentment calcifies. When handled with care, these resolutions can preserve goodwill. Clients who settle early often walk away with a greater sense of dignity, and in many cases, future business or family cohesion remains intact.

The emotional toll of litigation is often underestimated. Court proceedings are not only slow—they are invasive. They require parties to recount painful histories, to expose family dynamics, to endure discovery and cross-examination. Early resolution spares people this. In estate litigation especially, where grief and guilt already run high, resolving matters at an early stage can prevent families from splintering further. It offers closure at a time when healing, not hostilities, should take priority.

Perhaps most significantly, early mediation unlocks practical solutions that courts cannot provide. Litigants who mediate early can craft outcomes that include not just money, but understanding. Apologies can be offered. Reputation can be protected. Payment terms can be phased or structured. Confidentiality can be built into the resolution. The earlier the parties sit down, the more flexibility exists to design a settlement that reflects their true interests, not just their legal positions. It’s this kind of forward-thinking resolution that early mediation makes possible, and that traditional litigation too often makes impossible.

The Challenges: Why It’s Hard

Early mediation, while promising, is not without its difficulties. One of the most persistent barriers is the fear of the unknown. Many lawyers may hesitate to mediate before discovery is complete, worried that an undisclosed document or unforeseen fact might undercut their position. “What if there’s something I haven’t seen?” becomes a reflexive concern. But in practice, I’ve seen time and again that the essential issues are usually identifiable early in the process. The remaining details, while not irrelevant, rarely shift the core dispute. They serve more to confirm what’s already understood than to transform the landscape.

Another challenge lies in the potential for tactical misuse. Some parties engage in early mediation not with genuine intent to resolve, but to fish for information or stall proceedings. Others arrive at the table unprepared, lacking the documentation or clarity needed to engage meaningfully. When that happens, early mediation can do more harm than good—it can erode trust, heighten suspicion, and entrench adversarial attitudes. The key to avoiding these pitfalls lies in careful structure: pre-mediation protocols, agreed-upon disclosures, and strong mediator guidance are essential to ensuring the process is taken seriously and handled responsibly.

There’s also a more subtle but entrenched barrier: institutional inertia. Law firms and insurance companies have long operated according to the traditional litigation timeline. Files are triaged, staffed, and budgeted with a view to multi-year progression. Early mediation disrupts that rhythm. It requires earlier preparation, faster decision-making, and a willingness to reconfigure long-standing workflows. For organizations accustomed to slow-moving files and strategic delay, this shift is not always welcome.

And then there’s the psychology of the client. Many clients arrive with an expectation, sometimes shaped by television, sometimes by pride, that they will have their “day in court.” The idea of settling early can feel like surrender or silence. They may conflate the process of litigation with the feeling of vindication, believing that anything short of cross-examination is a form of injustice. It takes patient, thoughtful counsel to explain that resolution, particularly early resolution, is not weakness. It’s strategy. It’s mercy. And in many cases, it’s the outcome that best serves their long-term interests, financial, emotional, and reputational.

Building a Culture of Early Resolution

In my view, if early mediation is going to take root in Ontario’s evolving civil justice system, encouragement alone isn’t enough—we need hard infrastructure. This isn’t just about promoting best practices; it’s about embedding early resolution directly into the litigation process itself. Without formal procedural triggers, the system will continue to rely on the instincts of forward-thinking counsel or the discretion of overburdened judges. That’s not sustainable if the province is serious about decongesting the courts and modernizing access to justice.

To be effective, early mediation needs to be expressly incorporated into the Rules of Civil Procedure. We should be establishing defined trigger points—ideally within the first 90 days after a statement of claim is issued—that require counsel to prepare and file an early mediation plan. This wouldn’t replace case management; it would complement it. Such a rule would ensure that the question of resolution is raised not years into litigation, but at the outset—when positions are still fluid and legal costs haven’t yet spiralled. It would help normalize the idea that settlement is not a retreat but a strategic starting point.

The proposed Phase 2 reforms hint in this direction but stop short. The consultation paper gestures toward earlier case conferences and greater judicial authority to direct the pace and focus of litigation, including potential encouragement of settlement discussions. But it does not yet propose mandatory early mediation or a rule-based requirement to file a mediation plan early in the life of a case. That’s a missed opportunity. Without codifying the expectation that parties should discuss resolution in the first phase of litigation—ideally tied to a scheduling obligation or pre-trial roadmap—there’s a real risk that early mediation will remain optional in all but name.

Education will be essential, not just for the bench but also for the bar. Judges should be equipped and encouraged to use their expanded case management powers to direct parties to early mediation in appropriate cases. At the same time, lawyers need continuing education focused specifically on how to prepare for and conduct pre-discovery mediation: what information must be exchanged, how to assess risk early, and how to bring clients into the process with the right mindset.

Mediators have a role to play too. In my practice, I’ve seen that early mediation succeeds when there are clear protocols in place. Mediators can assist by developing standardized pre-mediation frameworks that support a fair but efficient process—frameworks that might include a mutual confidentiality agreement, exchange of limited but targeted documents, and short risk summaries. These tools can allow parties to engage without the weight of full discovery while still feeling anchored in fact.

Perhaps the greatest potential for systemic change lies with the repeat players, namely the insurers, municipalities, public institutions, and large employers who see high volumes of litigation. These parties have the most to gain from early resolution: cost certainty and containment, reputational protection, and restored operational focus. If they adopt early mediation as a default expectation, and demand it from opposing counsel, it will change the culture more rapidly than any rule amendment ever could. These stakeholders are ideally positioned to pilot new models, develop data on success rates, and demonstrate that early resolution isn’t just principled, it’s practical.

At the end of the day, building a culture of early resolution isn’t about hoping for change, it’s about designing for it. The current proposals reflect a willingness to move in that direction, but without stronger procedural commitments, the system risks defaulting back to the familiar cadence of discovery, delay, and late-stage bargaining. If Ontario is serious about transforming civil justice, early mediation needs to be treated not as an exception, but as an institutionalized first step.

Scenarios

Under the new civil procedure reforms, I anticipate early mediation will become more than just an occasional detour. It will become an expected, and in many cases strategic, first step in resolving disputes. I can already envision how this might play out across a range of litigation contexts.

In commercial contract disputes, for instance, I foresee parties moving swiftly to mediation following a contract termination or alleged breach, particularly when both sides recognize the reputational and operational costs of drawn-out litigation. Instead of racing to issue a claim or firing off a counterclaim, counsel might agree to engage a mediator within a matter of weeks, using that session to negotiate structured wind-down terms, confidentiality protections, and reputational safeguards that preserve future business opportunities. With early disclosure of key contractual documents and a focused agenda, the process is not only faster but more productive.

In personal injury claims, particularly those involving soft-tissue injuries or chronic pain, I expect a shift away from the default assumption that discovery must be exhaustive before settlement can be pursued. With basic medical documentation, wage loss records, and possibly with an initial orthopaedic opinion in hand, plaintiffs and insurers may increasingly be prepared to mediate within the first year or two post-accident. Instead of waiting for multiple assessments and surveillance efforts, the parties can engage in a realistic discussion about risk, credibility, and value. The goal is not to short-circuit fair compensation, but to deliver it proportionately and without procedural drag.

Estate disputes, too, are primed for early mediation. Where there are allegations of undue influence, unequal treatment, or strained familial dynamics, early intervention can be decisive. Rather than waiting for parties to entrench their grievances through lengthy litigation, counsel and trustees may, and should,  now have the opportunity, with judicial encouragement, to mediate before the costs escalate or relationships are irreparably damaged. With selected records, contextual family history, and a clear summary of the testamentary landscape, early mediation can offer grieving families the chance to resolve disputes quietly, respectfully, and without the scorched-earth consequences of public court hearings.

In all of these scenarios, what ties early mediation together is not premature resolution, but intentional timing. The new rules will reward those who plan early, share information responsibly, and come to the table prepared to engage. It’s a different rhythm—and for many, including me, a welcome one.

Why This Matters Now

Ontario is about to formalize what many of us in mediation already know: that early, informed discussion resolves more disputes than we give it credit for. Civil procedure reform isn’t about shortcuts, it’s about efficiency, proportionality, and justice delivered in a timely way.

But for early mediation to thrive, lawyers must take that leap of faith. They must trust that not every case needs discovery before discussion. They must prepare differently, with clear-eyed analysis, candid disclosure, and realistic expectations. And they must choose mediators who understand both the law and the delicate psychology of early resolution.

Conclusion: Courage Over Caution

Early mediation is not for the faint of heart. It demands vulnerability, creativity, and professionalism. But the dividends for clients, counsel, and the justice system are enormous.

As Ontario reshapes its civil litigation landscape, those who embrace early mediation won’t just be complying with new norms. They’ll be leading the way.

So take a deep breath, be courageous and leap. Resolve early. Litigate only when necessary. And rebuild public confidence in a justice system that listens, adapts, and evolves.