Choosing a mediator in Ontario insurance or personal injury claims is one of the decisions that gets the least attention and has the most impact on how a file resolves. The right mediator can move a case that’s been stuck for months. The wrong one – or no agreement at all – can leave both sides further apart than when they started. This article covers what to look for when selecting a mediator for Ontario insurance litigation, how the two mandatory mediation frameworks differ, and where mediation ends and arbitration begins. Bruce Cook at Cook Reynolds in Hamilton has practiced on both sides of the bar for over two decades and offers mediation services to both plaintiffs and insurers.
- Last updated July 13, 2026
The Importance of Mediator Selection in Insurance Litigation
This article is written for Ontario plaintiff counsel handling mediator selection in personal injury and related claims. Finding the right mediator is often the difference between a stalled file and a successful resolution.
Disputes over mediator selection in Ontario insurance litigation tend to follow a predictable path. Plaintiff counsel requests mediation and proposes experienced, specialist mediators whose qualifications are strong and whose skills match the complexity of the case. Defence counsel may have a different view on who is best suited for the file, and the two sides don’t always land on the same name.
When the parties can’t agree on a mediator, the path forward isn’t always clear. Throughout most of Ontario, there is no mediation roster. The roster is a creature of Rule 24.1 of the Rules of Civil Procedure, and that rule only applies in actions commenced in Ottawa, Essex County, and Toronto. Outside of those jurisdictions, there’s no default list to fall back on, and the selection process requires both sides to reach agreement on their own.
What to Look for in a Mediator for Insurance Litigation
It’s probably not sufficient to propose a mediator without extensive experience in personal injury litigation. Someone whose commentary carries weight with both counsel and the parties is ideal – a practitioner with a well-balanced approach and a background in both insurance defence and plaintiff personal injury matters is more likely to be effective.
When looking for an experienced and respected mediator, consider several practical criteria:
Does the mediator have substantial experience in personal injury and insurance litigation? Someone who’s spent most of their career in family law or commercial disputes isn’t likely to know the mechanics of an MVA tort claim well enough to test the assumptions on either side.
Has the mediator practiced on both sides of the bar? A mediator who’s done both plaintiff work and insurance defence work tends to carry more credibility with both counsel. They can speak to the strengths and weaknesses of each side’s position from direct experience, not theory.
Does the mediator have a history of settling comparable cases? Both counsel should be looking for someone with a record of resolving claims in the same range and complexity.
Is the mediator’s approach suited to the case? Some mediators are directive – they push the parties toward what they think the result should be. Others are facilitative – they help the parties find their own resolution. Neither is right or wrong, but the fit matters. A catastrophic injury claim with entrenched positions may need a different style than a soft tissue case where the numbers aren’t far apart.
Not every personal injury matter will need the most prominent mediator in the province. But picking a mediator based on fees alone, without regard for their experience or the likelihood of resolution, isn’t reasonable either.
When Mediation Is Mandatory in Ontario
Ontario has two separate mediation frameworks, and confusing them causes problems in practice.
The first is Rule 24.1 of the Rules of Civil Procedure. Rule 24.1 applies to certain civil actions commenced in Toronto, Ottawa, and Essex County. Under this rule, the parties select a mediator from the local roster or choose someone outside of it. The mediation has to take place within 180 days of the first defence being filed (90 days in simplified procedure actions).
The second applies province-wide to motor vehicle accident claims. When the plaintiff requests mediation, the insurer is required to participate. There’s no roster, no fee schedule, and no geographic restriction.
These two regimes don’t overlap. An action that’s already been through mandatory mediation for motor vehicle accidents is exempt from mandatory mediation under Rule 24.1, provided the mediation took place less than one year before the first defence was delivered.
The distinction matters for mediator selection. Under Rule 24.1, the roster creates a natural starting point – the parties often default to whoever’s available on the list. For motor vehicle claims, there’s no list. The parties have to agree on a mediator.
Mediator vs. Arbitrator in Ontario
In Ontario legal practice, the terms “mediator” and “arbitrator” get used interchangeably more often than they should. They’re different processes with different outcomes.
A mediator is a neutral third party who helps the opposing sides reach a voluntary agreement. The mediator doesn’t decide the case or impose a result. If mediation doesn’t produce a settlement, the parties still have their right to trial. The mediator’s role is to test each side’s assumptions, identify common ground where it exists, and find out whether there’s a zone of agreement that counsel haven’t seen on their own.
An arbitrator is closer to a private judge. The arbitrator hears evidence, considers submissions, and makes a binding decision. The parties give up their right to trial in exchange for a faster, less formal process. In Ontario insurance law, arbitration comes up most often in accident benefits disputes before the Licence Appeal Tribunal (formerly FSCO). Tort claims under the Insurance Act go through mediation, not arbitration.
Some practitioners do both. A mediator who can speak credibly about what a judge or arbitrator is likely to do with a particular set of facts brings something to the table that a generalist can’t. That credibility – the ability to reality-test each side’s position in a way that both counsel take seriously – is part of what makes the mediator selection decision so important in insurance litigation.
Hamilton, ON Mediator FAQ
In Closing
The mediation session itself typically runs half a day to a full day, depending on the complexity of the case and the number of parties involved. Some mediations settle at the table. Others settle in the days or weeks that follow, after both sides have had time to consider what came out of it. There’s no statutory time limit on the session’s length.
If you need an experienced mediator for litigation in Ontario, contact Cook Reynolds to discuss your options.
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