Why Mediation Is So Important — A Lesson from Barry v. Anantharajah
I recently came across an excellent commentary by Sean Brown, Partner at Flaherty McCarthy LLP, discussing the Ontario Court of Appeal’s decision in Barry v. Anantharajah (2025 ONCA 603).
His piece, The Power of Persistence: How Multiple Mediations Can Save Time and Money, offers a powerful reminder of why meaningful engagement in mediation is not just good practice — it is essential risk management.
⚖️ A Costly Example of “Playing Hardball”
In Barry, the plaintiff — a pedestrian struck by a vehicle — was ultimately awarded just $16,160.50 in damages after a three-week jury trial.
But the trial judge awarded $300,000 in costs, and the Court of Appeal upheld that award.
Why? Because the defendant and insurer had refused to make any monetary settlement offers at all.
The Court noted that this “all-or-nothing” strategy wasted judicial resources and was unreasonable given the risks of litigation.
💡 The Mediation Message
The Court’s decision reinforces a critical principle:
Litigation is not only about winning or losing — it is about how parties conduct themselves along the way.
Courts now expect parties, particularly insurers and employers, to:
- Engage seriously in settlement discussions
- Use mediation as a structured, good-faith process to explore resolution
- Avoid unnecessary trials that consume time, money, and court resources
Failing to do so can backfire — even a technical “win” at trial may be overshadowed by disproportionate cost consequences.
🌀 Why Multiple Mediations Can Be Key
Complex disputes often can’t be resolved in a single session.
Positions shift, new evidence emerges, and emotions cool over time.
Multiple mediation sessions allow parties to:
- Reassess risks with fresh information
- Explore creative solutions not apparent early on
- Demonstrate genuine commitment to resolution — something courts increasingly reward
📌 Mediation as Risk Management
In the employment law context, this lesson resonates strongly.
Prolonged workplace disputes, especially when heading toward litigation, carry heavy costs — both financial and reputational.
Engaging an experienced mediator early — and remaining open to multiple sessions — can:
- Control legal risk
- Contain costs
- Preserve workplace relationships
- Avoid the unpredictability of court
⚖️ Final Thought
As Sean Brown’s article shows, “playing hardball” by refusing to engage in mediation can prove far more expensive than settlement.
Mediation is not a courtesy or an optional extra — it is a vital part of responsible dispute resolution strategy.
📩 If your workplace dispute is escalating toward litigation, contact us to discuss how our mediation services can help protect your organization’s interests.