Mediation as a way for people to resolve conflict informally, in a private setting, and without the usual animosity (and bitter after-taste) associated with going to court.
A Mediator is a ‘neutral’ person in the process (impartial, with no stake in the outcome) who is specially-trained to help people resolve conflict by facilitating communications between them. The Mediator helps the parties clarify the issues and keeps their discussions on track, providing guidance but allowing the participants to state their respective positions and work out their own solutions.
A typical Mediation goes something like this (keeping in mind that everyone brings different ideas and expectations to the table which the Mediator tries to incorporate and utilize):
- a) The Mediator meets with the participants or their lawyers, to get a sense of whether they want to work together and what the general issues are and how the Mediation will proceed;
- b) Assuming everyone agrees to participate they then sign an Agreement to Mediate, which is a contract between the parties and also serves as the Mediator’s formal retainer.
- c) The Mediator meets with the participants individually, often before the Agreement to Mediate is signed – this is called ‘pre-mediation’ – to obtain more in-depth information which helps the Mediator better understand the situation, and to begin the process of clarifying what the parties hope to accomplish, or to understand things like financial considerations, work schedules and family dynamics;
- d) Mediations aren’t necessarily over in one session, depending on the subject matter and issues – and not all meetings that make up the Mediation always involve all of the participants. (If the Mediator ends up having a discussion with a single participant, however, then the Mediator will inform the other participant(s) what was discussed.);
- e) If a face-to-face Mediation – with everyone at the table – becomes difficult but the participants still want to try to reach an agreement, the Mediator will ‘shuttle mediate’ between the participants – but the same rules of impartiality and disclosure apply;
- f) Unless there is some reason and the parties otherwise agree, the participants must make full and frank disclosure of any relevant facts including all financial and other information so that the end agreement is enforceable. If one of the participants discovers information which would have changed the result was withheld then a Court can set aside the mediated settlement agreement;
- g) The Mediator is not supposed to give legal advice to the participants, but may provide general information about the law that pertains to the dispute. If the participants get bogged down then the Mediator can also offer suggestions and help brainstorm solutions;
- h) A typical Mediation session typically ranges between 2 to 3 hours. A Mediation can take several sessions and can extend over a number of days or even weeks. How long it takes depends on things like the number of participants, the number of issues that need to be resolved, emotions, and how successful the parties are in being objective and listening to and understanding each other’s points of view. The goal is a mutually acceptable resolution;
- i) While the Mediation is ongoing, the participants must agree to play fair and not make changes to things that might affect the issues being mediated – at least not without written consent from all participant(s), eg:
- i) when someone is covered by the other’s health insurance,
- ii) when dealing with issues related to division of assets or payment of money the participants must not unilaterally do anything to change ownership or devalue the assets, or
- iii) when child custody or visitation is at issue, the participants must not make changes that affect the children’s residence or lifestyle;
- j) All correspondence or other communications and information exchanged in relation to the Mediation must be kept confidential between the participants. If the Mediation does not result in an agreement or settlement then nothing said or done in the Mediation sessions can be used as evidence in a subsequent Court proceeding – unless something occurs that indicates someone is in danger (noting that everyone is obliged by law to bring it to the attention of the authorities if a child is in need of protection);
- k) When a resolution is reached, the Mediator (or lawyers) usually draft the settlement agreement. Each party gets a copy and is advised to review the agreement with a lawyer before signing it;
- l) A settlement agreement that results from a Mediation, that is drafted by a lawyer-mediator and then signed (and witnessed) by both participants who have received independent legal advice, is binding on the participants and is as enforceable as any contract reached in any other fashion;
- m) The cost of doing a Mediation session is usually shared by the participants, depending on whatever financial arrangements they make between themselves;
The following are some examples of the type of conflict that lends itself to Mediation in family matters:
- custody and access (including day-to-day living arrangements, birthdays, holidays, etc)
- child support and spousal support, including like tax credits
- review or variation of child or spousal support (because circumstances have changed)
- income tax issues generally (these generally require advice from a tax accountant)
- continuation of medical and dental insurance coverage
- life insurance
- full disclosure of assets and liabilities (bank accounts, investments, stock options, etc)
- real estate ownership – eg: family residence, rental property, recreational property
- division of RRSPs and pensions
- Canada pension plan
- ownership of motor vehicles
- club memberships
- trade-offs’
- division of furniture and chattels
- responsibility for debts
Many other situations are best suited for mediation:
- contract disputes, generally
- landlord:tenant matters
- construction industry disputes
- workplace conflict, such as between employees or employer:employee matters
- insurance issues related to accident claims
- matters related to insurance coverage
- respectful workplace and harassment complaints
- issues at schools between students and student:teacher conflict
- neighbourhood conflicts
