Mediation

Question 1

What is mediation (2)

Answer 1

• Negotiation between disputing parties assisted by a neutral party (always neutral)
• Mediator can help with the final settlement, but has no direct say

Question 2

Voluntary aspect of mediation

Answer 2

No party us forced to use a mediator, nor are they forced to agree to a particular settlement

Question 3

Non-coercive aspect of meditation

Answer 3

The mediator does not decide for the parties, but helps them make their own decision

Question 4

Assisted negotiation (mediation) (2)

Answer 4

• The mediator’s role is to be an impartial third party who helps the parties reach a fair and mutually acceptable settlement
• The mediator may provide relationship building and procedural assistance, as well as substantive resolution options to the parties.

Question 5

Informal aspect of mediation (2)

Answer 5

• More relaxed and informal than those of a court or an arbitration
• No prescribed rules or procedure and few rules other than those agreed to by the parties

Question 6

Confidential aspect of mediation

Answer 6

The parties decide that they want the mediation to be confidential, both parties and the mediator should sign the clause to that effect

Question 7

How to use mediation?

Answer 7

• Parties must attend all mediation sessions
• Mediator should remain dispassionate and avoid becoming partial to one party or view
• If confidential, application of the Access to Information Act and Privacy Act

Question 8

Preparing for a mediation (3)

Answer 8

• Choice to go is up to parties
• Parties must mutually select a mediator
• Mediation agreement should be drafted, including, but not limited to:
  1. The logistics of the mediation
  2. The cost sharing arrangement
  3. The mandate of the mediator
  4. Whether the mediation will be confidential or public record
  5. how disclosure would operate - in advance, or as required by mediator
  6. The use of subsequent processes if mediation is unsuccessful
  7. The possibility of co-mediation
  8. Remuneration for the mediator

Question 9

Steps of a mediation (5)

Answer 9

1. Agreeing to mediate
2. Understanding the problem(s)
3. Generating options
4. Reaching agreement
5. Implementing the agreement

Question 10

Role of a Mediator

Answer 10

• “Mature adult conversation”
• Encourage exchanges of information
• Help the parties understand each other’s views
• Let parties know their concerns are understood
• Promote effective emotional expression
• Identify and narrow issues
• Help find realistic settlement
• Suggest breaks, flexibility, creativity
• Shift the focus from past to future
• Propose solutions

Question 11

Role of counsel in a mediation

Answer 11

• Counsel plays as much of a role as their client wants them
• Must be determined by the disputing parties at the outset of the mediation if the counsel can be present at the mediation sessions
• Counsel should act as legal advisors to their clients
• Can help defuse instances of power imbalance

Question 12

Concerns about mediation (4)

Answer 12

• Some people believe it should be mandatory, others disagree
• Concerns about accountability and authority to settle
• Government might use its very structure (with many levels) to avoid making a final decision - this leaving the mediation process and placing a mediated solution at risk
• If government paid more to one side, the party which is paying less might be less committed to the mediation process (The Treasury Board Contracting Policy expressly states that the costs of mediation should be shared equally by the parties)