Mitchell Rose

“No, and it doesn’t depend!” – The Riveting Conclusion to ‘Should Mediators Work on Contingency?’

September 2018  – 5 minute read

Welcome to the riveting conclusion of last week’s post, entitled Should Mediators Work on Contingency?  I appreciate the ‘negative’ response it generated (as in, “no, they should not work on contingency”). There should be no surprise then that, unlike the lawyer-side of my brain that often answers tough legal questions with “well, it depends”, the mediator-side is clear and unequivocal on the issue of whether mediators should charge contingency fees: “No, and it doesn’t depend (on anything, anyone, or any result)!”.

5 reasons mediators should not charge contingency fees

As mentioned previously, if ADRIC’s prohibition on mediator contingency fees is not enough to convince you that non-member mediators should follow suit, I’m prepared to try to convince you. Although I am not aware of the precise reasons why ADRIC chose to ban contingency fees, I suspect the drafters of the Code were mindful of several of the following arguments against mediator contingency fees (particularly the first two):

Reason 1: Mediators are supposed to be neutral and impartial. However, if you make the mediator’s fee – or part of that fee – dependent on achieving a settlement (or certain terms of settlement) then neutrality can be compromised since the mediation outcome affects the mediators’ ability to get paid. As Cyndi Lauper sang, Read more →

Should Mediators Work on Contingency ?

August, 2018 – 5 minute read

Recently, someone asked me if mediators ever work on contingency. The question took me by surprise. To me, the answer seemed obvious, and so I replied: “No, of course not”. As a mediator, I have never charged a contingency fee, nor do I know any mediators where I practise (Ontario, Canada) who do so. Frankly, I don’t believe the thought had ever crossed my mind. However, as a lawyer (I am a lawyer and a mediator – just not for the same dispute), I will enter into contingency fee arrangements for legal services with clients from time-to-time, and for certain types of matters.

Nevertheless, I was curious about my instant aversion to charging contingency fees as a mediator, and I thought that the person who raised the issue deserved a fulsome answer.

In this post (and its conclusion next week), I will address the following questions: 1. Are mediators in Ontario and other parts of Canada permitted to charge contingency fees? 2. If so, are contingency fees a good idea?

What are contingency fees? Read more →

The Costs of Refusing Mediation


June, 2018  (12 minute read):

A recent Ontario Court decision demonstrates why refusing to participate in mediation in a civil proceeding, where mediation is not mandatory, can be expensive in the end. This decision of Mew J. respecting costs followed a seven-day jury trial in Belleville of a (non-MVA) personal injury matter. Liability and damages were in issue. After the jury found that the plaintiff was 25% contributorily negligent, damages were assessed at $212,000 including interest. The plaintiff sought costs on a partial indemnity basis of $269,371 plus tax.  The defendant argued that $150,000 inclusive of HST was appropriate.

In his reasons, the judge considered the various criteria and general principles relevant to the fixing of costs, including that “the usual rule in Read more →