In a seminal article from 1994, Fitting the Forum to the Fuss: A user-Friendly Guide to Selecting an ADR Procedure, the authors, Frank Sandler and Stephen Goldberg, both leaders in the ADR movement in the U.S. used ‘Fit the Forum to the fuss” as a principle in dispute resolution design meaning you should choose the right process (the “forum”) for the specific conflict (the “fuss”), tailoring it to the parties (people), the problem’s nature, and the process goals.
For more than four years, lawyers and mediators have lived with a quiet but persistent question, or minor irritant left by the pandemic: do we still need to justify virtual mediation? In other words what is the default for mandatory mediation in Ontario, in-person or virtual?
The recent case of Spiegelman v. Avantia Medical Imaging and Restorative Health et. al, 2025 ONSC 6970 (Spiegelman), provides a clear, if understated answer. The dispute involved an Ontario Rule 76 wrongful dismissal action and a disagreement over the meeting process of a Rule 24.1 mandatory mediation. The decision signals that online dispute resolution is now treated as part of the ordinary infrastructure of civil justice, not as an accommodation or a pandemic workaround.
Before 2020, mandatory mediation was presumed to be in person. Participation by telephone or videoconference was treated as an exception and typically required justification. COVID dismantled that assumption in practice. Until Spiegelman, however, there was little jurisprudence explaining what replaced it—or whether the old logic quietly endured. Justice MacLeod’s reasons in Spiegelman suggest it does not.
Before the pandemic, disputes about mediation attendance were commonly framed as requests for exemption. In-person participation was the default in Rule 24.1 mandatory mediations and mediation in general, and a party seeking to attend remotely bore the onus of explaining why that norm should be displaced.
Courts tended to focus on logistics such as distance, travel cost, health constraints, and proportionality to the amount at stake with the default as in-person attendance. Beneath that analysis sat an untested assumption that physical presence promotes settlement. This often-repeated assumption rarely rested on evidence, but it persisted reinforced by concerns over unfamiliar technology and the limits of telephone-only participation. It should be noted that The Financial Services Commission of Ontario (FSCO) had a long and successful history of telephone mediation.
The issue in Spiegelman was straightforward: should the mandatory mediation proceed in person, as the plaintiff insisted, or by videoconference, as the defendants proposed? What is important is not only the result that the mediation was ordered to proceed virtually, with a hybrid option by agreement but the reasoning behind it.
First, the court rejected the idea that in-person mediation remains the presumptive norm. Videoconferencing is now a mainstream mode of participation across civil proceedings. Absent evidence, the court would not assume that in-person mediation is more effective than virtual mediation. The court was unwilling to infer process superiority in the absence of evidence.
Second, the court found much of the record as almost irrelevant. The affidavits focused on the merits of the employment dispute rather than on the mediation process itself. There was no objective basis to conclude that settlement was more likely in one format than another. Personal preference including the plaintiff’s stated desire to “confront” the defendant was not sufficient.
Third, the court observed that this dispute should not have been brought as a motion. Rule 1.08 contemplates that disagreements about attendance mode be resolved through discussion and, if necessary, by direction at a case conference. Turning a logistics disagreement into an adversarial motion is inconsistent with Rule 1.08’s emphasis on proportionality and cooperation, particularly in a Rule 76 proceeding.
Together, these points seem to reflect a reframing of attendance as a process design question by the courts. The attendance mode should no longer treated as a procedural entitlement to be defended or displaced. The process design question of what format best supports resolution in the particular circumstances of the case should be paramount.
This shift is important. Spiegelman does not treat virtual mediation as second-best or transitional. It treats it as an ordinary and legitimate process option, to be assessed pragmatically rather than by reference to outdated and unsupported defaults.
The reasoning also reflects how mediation now functions in practice. Virtual formats can improve access to parties and counsel who might otherwise be unavailable. They can reduce cost and delay while preserving and sometimes enhancing consultation and candid caucusing. The decision treats these as unremarkable which is what they are today as simply part of the contemporary dispute-resolution framework.
For counsel, Spiegelman can be viewed as a cautionary tale. Attendance disputes should not be leveraged tactically or escalated into motions without a reasonable process concern. Courts expect cooperation and proportionality, and they may deny costs where procedural disputes over mediation adds little value to the outcome of the case.
For mediators, the decision provides quiet but meaningful support for today’s norm. Proposing virtual or hybrid formats is not a path to diminished justice as it aligns with the court’s understanding of effective process design. Spiegelman underscores the importance of keeping attendance discussions non-adversarial and tied to resolution objectives rather than personal preferences.
More broadly, the decision aligns practice under Rule 24.1 with an important insight from online or virtual mediation practice: settlement turns less on physical co-presence than on preparation, authority, and a genuine willingness to engage. Technology does not determine settlement, the parties in the mediation do.
Spiegelman does not state that mandatory mediations should presumptively be virtual, nor does it elevate technology over judgment. Justice MacLeod was careful not to replace one rigid default with another. None of this will surprise experienced mediators or counsel. But the decision carefully probes the lingering assumption that physical attendance is inherently superior and reframes face-to-face presence as a question of process design, evidence, and proportionality.
For mediators and counsel this confirms the reality and post-COVID experience that virtual and hybrid processes are no longer provisional. They are part of how mediation in civil justice now operates and they will be evaluated by courts by considerations of function, not nostalgia.
This case provides a clear message. Courts will have little patience for procedural skirmishing over mediation logistics unless a genuine process concern is identified as the issue. What drives settlement is not the room, but the readiness of the participants, the authority at the table, and the quality of the process design.
Spiegelman is a reminder that, in every mediation, form should follow function and disputes about form should not be allowed to derail the goal of resolution.
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