This is how we see the mediation of legal disputes at Scott Petrie LLP conducted by our partner Angelo C. D’Ascanio.

Mediation provides a timely and cost-efficient way for parties to resolve their legal disputes. In addition, settlements concluded at mediation give parties ownership in resolving their legal dispute. It’s not left to a third party to impose a binding decision on them.

Depending on the circumstances, some legal disputes would benefit from mediation at the start of the legal dispute while other legal disputes require a certain amount of investigation and discovery of the issues and merits before a mediation would be constructive. This investigation and discovery of the issues and the merits need not always be done through the court litigation process. It may be done by the parties agreeing to provide each other with certain information and evidence prior to the mediation and/or by the mediator conducting separate pre-mediation meetings with the lawyers for the parties for a preliminary exploration of the issues raised and interests behind them. This builds the foundation for a constructive mediation session. Mediations are customizable to suit the needs and interests of the parties – they can be based on the more common model of the parties filing mediation briefs and then the parties and their lawyers showing up for a mediation session or a pre-mediation process can be built into the common mediation model if in the circumstances this would lay the groundwork for a more constructive and productive mediation session.

Settlements at mediation are often achieved when the proposed settlement terms that have been negotiated reach a point where they are considered by the parties to be better than the alternative of proceeding with litigation. The question is often framed as whether the proposed settlement terms that have been negotiated are better than a party’s Best Alternative to a Negotiated Agreement (“BATNA”).

Identifying a party’s BATNA requires the consideration of a number of factors including: the party’s realistic assessment of the strengths and weaknesses of their case, and a resulting realistic assessment of what the judge’s decision is likely to be at the end of trial; the passage of time/delay required to obtain that judicial decision; whether the judge’s decision is likely to be final or appealed; the party’s unrecoverable legal costs which will be spent in the litigation process and obtaining the judge’s decision; the time commitment, and perhaps stress, involved in prosecuting or defending an action up to and including trial; and, the risk of having to pay the other side’s legal costs if the judicial decision is not favourable.

By way of example, the parties need to ask themselves “is the deal on the table better than 3 years of litigation, at considerable time, stress and unrecoverable expense, and where I have a 50% chance of winning/losing and, if I lose, I will also have to pay the other side’s costs?”. If the answer is “yes”, then a mediated settlement is appropriate. If the answer is “no”, a mediated settlement is not appropriate.

The mediator’s role is to assist the parties in getting to “yes” in an impartial and unbiased way. The mediator does not advocate for any of the parties. The mediator is neutral.

It is important to note that even mediation that does not result in a settlement may be constructive in allowing the parties to narrow the issues thereby streamlining the litigation process.

Angelo is well qualified as a mediator. He obtained his ADR Institute of Canada accredited certification in mediation training from the ADR Learning Institute in 2024 and has 33 years of experience representing clients in resolving their legal disputes through the court litigation process and by way of mediation, arbitration and mediation-arbitration. Angelo was called to the Ontario Bar in 1991 and has an LL.M. from Western University, an LL.B. from Queen’s University and a B.A. from University of Toronto.

Angelo’s mediation services, like his legal practice, are focused on assisting parties in resolving their legal disputes arising from all business matters such as legal disputes arising from business contracts, corporate transactions, accounting matters, the sale and supply of goods and services, shareholder and partnership relations, commercial leases, construction projects, real estate developments and transactions, commercial insurance claims, competition and solicitation of customers by departing employees, unsecured and secured loan transactions, and insolvency matters.

In addition, like his legal practice, Angelo’s mediation services also include assisting parties in resolving their legal disputes arising from professional negligence claims against engineers, lawyers and accountants and estate matters.

Angelo is prepared to bring his wealth of legal experience and mediation skills to mediate legal disputes not within his areas of practice assuming that counsel for the parties detail the applicable legal framework in their mediation briefs.

For more information about Angelo see his bio. To inquire about using Angelo’s mediation services, including costs, please contact him at adascanio@scottpetrie.com or 519-433-5310, ext. 247.