Introduction

Five years ago, when I transitioned from litigation to full-time mediation, I did not expect I would spend most of my time resolving disputes through a computer screen. But like many in the profession, the pandemic abruptly shifted how we work. ZOOM went from novelty to necessity, and with it came the rapid rise of Online Dispute Resolution (ODR).

After 30 years as an advocate, I began winding down my litigation practice at Patey Law Group in early 2020—having closed my midtown office in December 2019 and relocated operations to my downtown condo—while simultaneously ramping up a new mediation practice, just as the world stood on the brink of transformation. At the same time, my partner Dan was also facing a career crossroads. For most of the prior decade, he had been a manager with the Ontario College of Trades and Apprenticeship^[1], and had been on a special secondment to the Ministry of Labour. But in October 2018, the newly elected Doug Ford government announced plans to “wind down” the College, describing it as an unnecessary and burdensome regulatory body, with operations to cease in early 2019 under the Making Ontario Open for Business Act^[2].

It was a moment of disruption for both of us, but also one of opportunity. As the world prepared to shut down, Dan and I began laying the groundwork for what would become Patey Mediations Inc., launching our fledgling practice just weeks before COVID-19 upended daily life.

The timing was challenging. Traditional referral pathways and networking opportunities, especially the informal, but essential, hallway connections at places like Network Court Reporting, were suddenly unavailable. Everyone was either in self-quarantine, out of the office or working remotely for most of two years. Yet we had a vision: to build a collaborative model where I would serve as mediator and Dan would work at my side as our ODR coordinator. Dan committed to this new path, completing Osgoode Hall Law School’s Online Dispute Resolution certificate in 2020, and we have since developed a truly integrated mediation service. Unlike the typical solo practitioner model, we operate as a team in every session with Dan handling all technical and logistical aspects, freeing me to focus entirely on the legal issues, the personalities, and the negotiation process. It’s a structure that has become not just efficient, but foundational to the way we work, and also one that has resonated strongly with counsel and clients alike.

What began as a temporary workaround during COVID has become a permanent fixture. Yet despite the convenience and broader access it brings, ODR is not without its limitations. Having conducted hundreds of mediations virtually, ranging from routine MVA cases to complex multi-party medical malpractice and estate disputes, we have seen where it delivers real value, and where it subtly, or not so subtly, can impede resolution if allowed to.

A Short History of ODR—And Mediation Culture Before It

Long before the legal profession had to adapt to online dispute resolution, we faced a different kind of systemic shift: the introduction of Mandatory Mediation in Ontario in the late 1990s. Rule 24.1 of the Ontario Rules of Civil Procedure was introduced as a pilot project on January 4, 1999, in Toronto and Ottawa (later expanding to Windsor by late 2002), marking the launch of the Ontario Mandatory Mediation Program^[3].

As a litigator practicing in Toronto during that era, I experienced firsthand the profession’s initial resistance to court-annexed mediation in tort matters. Many lawyers viewed it as a procedural hoop to jump through rather than a meaningful opportunity for resolution. But over time, it became clear that mediation was not merely a formality. It was a space where real negotiation could happen, often more effectively than in court. In-person mediation thrived in that era not only because of its structure, but because it brought everyone—plaintiffs, insurers, and counsel—into the same room, face to face, in a confidential and without-prejudice setting, where the presence of a neutral, experienced mediator often humanized both sides and helped dissolve the professional posturing that can stand in the way of resolution.

In parallel, I was deeply involved in the accident benefits system’s two-step mediation-arbitration model, including FSCO’s pre-arbitration process, which for years served as an unofficial final forum for resolution before matters advanced to full arbitration. Taking place at FSCO’s hearing rooms in North York, these hearings created a physical space for insurers and injured claimants to narrow disputes or resolve them entirely. In both tort and AB practice, mediation gradually evolved from a compliance obligation into a strategic and often indispensable part of litigation.

So when ODR began gaining traction in 2020, it was not the concept of mediation that challenged the profession, rather it was the format. Prior to the pandemic, remote proceedings were rare. Video technology was available but barely used. Lawyers, clients, and mediators alike viewed mediation as a physical, in-person exercise rooted in the ritual of showing up, of being in the same room, exchanging offers across a boardroom table, and reading the room in real time.

Then came COVID-19. In an instant, physical offices closed, in-person hearings were suspended, and the legal profession was forced to pivot. Remote hearings, ZOOM mediations, and virtual settlement conferences became the new standard. The judiciary had to adapt swiftly, and so did we.

What was once considered fringe practice became the backbone of dispute resolution. And now, long after courthouses have reopened, ODR remains a core part of civil litigation, not as a substitute for in-person mediation, but as a viable, and overwhelmingly preferred, alternative.

Where ODR Excels

A. Accessibility and Efficiency

One of the most immediately noticeable advantages of online mediation is the sheer reduction in time commitment for everyone involved. Counsel, clients, and mediators alike are no longer required to endure the logistical grind of travelling across the city—or across regions—to attend a session in person. Gone are the hours spent battling traffic, searching for parking, or navigating transit delays, only to arrive slightly frazzled just minutes before opening remarks. The ability to log in from virtually anywhere has streamlined the entire process, allowing mediations to begin on time and with far less pre-session fatigue.

For clients especially, the comfort of attending from their own home can make a material difference. Rather than sitting in a sterile boardroom or legal office for hours, they can remain in a familiar environment, with access to food, washrooms, and the quiet comforts of home. This ease of access often translates into a calmer, more focused participation, particularly for plaintiffs dealing with chronic pain, anxiety, or other post-accident limitations.

And from the mediator’s perspective? Let’s just say that commuting has never been more efficient. These days, my longest commute is from the bedroom to the desk, and I’ll confess—I only have to get properly dressed from the waist up. It’s not just efficient. It’s civilized.

B. Comfort and Participation

Clients are often more relaxed and open when participating from home. In a recent mediation involving an injured plaintiff with significant mobility and psychological limitations, her ability to remain in a familiar setting—without the stress of travel or navigating a busy office—clearly improved her engagement and reduced the emotional volatility often associated with in-person confrontations.

C. Document and Expert Integration

I’ve seen clear benefits in mediations involving multiple insurer participants, where adjusters, claims managers, and lawyers were able to quickly join breakout rooms, review screen-shared documents, and make decisions on the fly. The ability to bring people in and out of the process fluidly is one of ODR’s greatest strengths.

D. Cost Savings

In lower-value files or limited tort claims, the financial efficiencies of virtual mediation make early resolution more viable. Defence and plaintiff counsel alike avoid the time and cost of commuting, which can often equal or exceed their fees on a straightforward file.

Where ODR Struggles

A. Rapport and Human Connection

Mediators rely heavily on building trust—often quickly. In-person, a few minutes in a private room, a handshake, or shared body language can make all the difference. Over ZOOM, these moments are harder to replicate. In more emotionally charged disputes I’ve mediated, this lack of rapport sometimes prevents parties from feeling truly “heard”.

B. Technical Limitations

While most lawyers and adjusters are fluent in ZOOM technology, I’ve encountered parties who were either uncomfortable with the technology or had unreliable internet. In one matter involving an elderly claimant, the mediation stalled for nearly 40 minutes due to audio issues and lag, sapping momentum and increasing frustration on both sides.

C. Settlement Resistance

In several higher-stakes tort claims, I’ve observed that the physical presence of the parties often enhances commitment to resolution. There’s something about being in a room—away from home, in unfamiliar surroundings—that promotes finality. In contrast, one multi-party personal injury matter conducted virtually saw parties disengage after a single lowball offer, citing “ZOOM fatigue.”

D. Confidentiality Concerns

There have been occasions where I’ve had to remind participants to confirm that no one else is in the room off-camera. In sensitive files involving minors or reputational concerns, these confidentiality gaps—real or perceived—can discourage openness and settlement.

The Hybrid Future

The future of mediation isn’t fully virtual or fully in-person. It’s hybrid—and flexible.

I’ve mediated several files where plaintiffs participated in-person with their counsel, while insurers and adjusters joined remotely. In complex tort matters with multiple carriers, this has proven to be a highly effective format—preserving the psychological impact of in-person interaction while leveraging the convenience of virtual attendance for out-of-town decision-makers.

Some matters—especially those with entrenched emotional issues or fragile client relationships—continue to benefit from in-person presence. But others, particularly standard MVA files or procedural disputes, are well suited to ZOOM. The key is discernment.

My Experience as a Mediator

Over the past two years alone, I’ve mediated:

• A global tort/AB claim involving an bicycle accident, where parties from three cities resolved the matter in under three hours—all via ZOOM.
• A complex estate dispute involving four siblings, with heightened emotional undercurrents. The online format allowed controlled communication, structured breakout caucusing, and ultimately a creative resolution. But it would not have succeeded without pre-mediation groundwork.
• A catastrophic injury file with multiple expert reports and a high-value future care claim, where screen-sharing reports and cost-of-care analyses allowed real-time negotiations with the insurer’s team, all virtual.

ODR and the coordination by my partner Dan has allowed me to work at a level of reach and intensity that would have been far more constrained by geography just a few years ago.

What Lawyers and Clients Need to Know

Mediation—virtual or otherwise—still demands real preparation. Lawyers should:

• Walk clients through the ZOOM process in advance.
• Set ground rules for privacy and focus.
• Discourage distractions (phones, email, side conversations).
• Emphasize that while it’s online, it’s not informal.

The best outcomes come when all parties treat virtual mediation with the same seriousness and professionalism as they would an in-person event.

Conclusion

ODR isn’t a trend. It’s a tool. And like any tool, it needs to be used wisely.

Its advantages are real—especially when it comes to efficiency, access, and cost. But its limitations are just as real, and not all disputes are best resolved through a screen.

The emergence of online dispute resolution as a mainstream tool—accelerated by the pandemic—now arrives at a fortuitous moment for Ontario’s legal system. With sweeping reforms to civil procedure on the horizon and mounting pressure on trial courts due to the sheer volume of outstanding claims, ODR offers a timely and practical solution. Its ability to streamline scheduling, reduce delays, and promote early resolution aligns perfectly with the justice system’s urgent need to clear trial backlogs and restore procedural efficiency. What began as an emergency adaptation has now become a permanent, scalable method for resolving civil disputes—one that is uniquely suited to meet the demands of a post-COVID litigation landscape.

At Patey Mediations, we don’t force a format. We listen to counsel, assess the nature of the dispute, and build a process that fits. Whether online, in person, or somewhere in between, we focus on what matters most: moving the file forward, and finding resolution.