What is mediation?
Mediation is a voluntary and confidential process that relies on a neutral third party (mediator) to help individuals or groups work out a solution they can both agree on. Simply put, mediation is a voluntary way of resolving disputes.
Mediation is less adversarial than many other approaches to resolving your conflict and can preserve or improve the relationship between the parties.
How is mediation initiated?
People approach mediators in a few different ways:
- The parties agree to start and make the approach jointly or agree to have one party make the initial phone call
- One party decides to mediate, initiates contact, and works out with the mediator how to involve the other party
- The parties are referred by a court, agreement of counsel, or other organization or third party.
What are the benefits of mediation?
- Saves time and money
- Completely private and confidential
- Allows for win-win outcomes
- Allows for creative solutions
- Allows for healing
- Non-adversarial and less harmful to relationships
- A cost-effective alternative to litigation
Is it confidential?
Yes, the parties to a mediation and the mediator may not record, share, or publish outside the mediation process, including on social media anything that is said or produced in writing or digitally in the mediation sessions unless the parties both agree in writing to do so. The one exception to this is the final Mediated Agreement.
Most parties choose closed mediation as it’s private and confidential. This means that neither party nor the mediator may give evidence in a legal proceeding about what was said during the mediation.
How do I select a mediator?
A key step in any mediation is the selection of a mediator. There are no certification programs for mediators that are recognized everywhere. Mediators come from many different backgrounds.
Before hiring a mediator, you should ask for information about their training and experience. It’s a good idea to ask for résumés and references and to contact more than one mediator before deciding.
The mediator must not have any personal or business relationship with anyone in the dispute. While it is often helpful, it is not necessary for the mediator to be expert in the subject matter of the dispute.
What is the role of the mediator?
- The mediator shapes the process while the parties control the outcome. The mediator:
- Manages and structures negotiations
- Works with parties to establish rules for conduct
- Keeps communication open and discussions on track
- Is a sounding board, innovator, and reality tester
Mediators assist with developing ideas for resolution. They do not control the process because it is parties to the dispute who are most able to recognize a workable solution.
Mediators will not usually suggest that a party compromise. Instead, they will encourage settlements that are mutually beneficial, that have been tested against reality and meet parties separate and shared needs, as well as promote an understanding about the value of resolution. They may also make certain parties understand the consequences of walking away from a possible settlement.
How long does it take?
The time required to mediate a dispute varies according to the complexity of the dispute. A mediation session can range from one to four hours in length.
We’ve decided to Mediate – What’s next?
The parties are required to sign an agreement to mediate which outlines the specifics of the process and respective requirements. An “Agreement to Mediate” is a formal, signed contract between the parties, and includes a description of the expectation and role of the mediator and the participants. The Agreement outlines how the parties will share expenses and sets out confidentiality guidelines. The Agreement also states that the mediator does not provide technical or legal advice, nor can they appear as a witness at subsequent court hearings.
What do I need to do to prepare for mediation?
The mediator will help the parties prepare for the mediation sessions. This can take the form of requesting documents as well as providing “homework” to help parties participate fully in mediation.
It is helpful if each party considers some important questions before the mediation, such as:
- What is the best outcome I could reasonably hope for?
- What is the worst outcome I should prepare for?
- What am I most concerned about and what can the other person do to respond to those concerns?
- What is the other person most concerned about and what can I do to respond to those concerns?
- What are my options if I do not reach a settlement in mediation?
What is the process?
Once the parties have agreed to mediation, there are three phases:
Phase 1: Pre-mediation. The mediator will have a private, confidential meeting with each party to discuss hopes for the mediation, what to accomplish, and any concerns. The mediator will provide coaching on how to best approach the joint mediation sessions and what information to bring. Discussion will also centre around needs for each party to feel as comfortable as possible.
In family mediation, a critical part of all separation and divorce pre-mediations is the completion of a safety screen so that all safety issues can be identified, discussed, and addressed in advance of the joint sessions.
Phase 2: Joint sessions. The parties meet with the mediator to draw up an agenda and to have honest, frank, focused discussions leading to agreements on each of the agenda items. If there are any safety issues, the mediation may be conducted in separate rooms, online (Zoom) or by telephone. Joint sessions are typically booked for two hours but may run longer. The number of sessions needed depends on the complexity of the issues to be resolved.
The mediator will typically guide the joint sessions through four stages:
- (i) Mediator’s opening statement – The mediator describes the process, establishes ground rules for conduct, reviews the agreement to mediate, describes their own role and confirms everyone’s commitment to proceed.
- (ii) Story development – Each party gives a summary of the facts of the dispute. The mediator then clarifies and frames the issues in terms acceptable to the parties.
- (iii) Identifying the interests – Using questions, the mediator shifts the focus from positions to underlying interests, and ultimately formulates a goal statement incorporating all the interests identified.
- (iv) Generating options – The parties list and evaluate options for satisfying as many interests as possible, and, thereby, for reaching a settlement. The mediator helps to assess and analyze the options but does not take sides.
At some point during the mediation, the mediator may want to meet separately with the parties.
Phase 3: The mediated agreement. Once all the agenda items have been resolved, the mediator will summarize the decisions made by the parties into a Mediated Agreement. The parties would meet with the mediator to review the draft and make any necessary changes. From there, the parties can decide to voluntarily follow the Mediated Agreement or take the agreement to their lawyer to have it translated into the appropriate legally binding agreements.
What about legal advice?
It is strongly recommended that participants in mediation seek legal advice as needed throughout the mediation process, and before signing any agreement arising out of the mediation.
When and where is the mediation held?
That is up to the parties and most mediators are flexible as to locations and times to try to accommodate the party’s needs.
Can I attend remotely?
Most mediators will do online mediation with Zoom, WebEx or another secure video online platform. In some cases, one party may attend by telephone and not video conference, but the details of the mediation process will have to be agreed to by both parties.
How long are the mediation sessions and will there be breaks?
The length of the sessions and the timing and length of any breaks can be tailored to suit the needs of the parties. Sessions usually run anywhere between one and four hours in length – depending on the matters to be addressed.
Can each party choose a mediator so that there are two mediators instead of one?
Yes, if the parties agree that they want two mediators and if the mediators chosen will agree to co-mediate.
What if I or the other party has addiction or mental health challenges?
In many cases the mediator will be able to make accommodations to address such as these, so long as it can be done safely for all parties.
The other party has been charged criminally; can we still mediate?
If there is no legal document preventing contact between the parties and any safety issues are addressed, then a mediation can occur.
Can the mediator stop the mediation?
Yes the mediator controls the process and if one party is not abiding by the terms agreed upon in the “Agreement to Mediate” or is not following the mediator’s directions or the process has become unfair, unproductive or abusive, then the mediator can and should end the mediation.
If we do not settle the conflict will the mediator decide my case?
No, the mediator merely helps the parties to come to a negotiated settlement. If you both do not agree then there is no settlement.
What happens if the conflict is not resolved?
Then other legal or administrative processes will continue.
What happens if a settlement is reached?
The mediator will produce a Mediated Agreement.
What are the benefits of mediation?
- It is less expensive than other legal or administrative options.
- It generally takes less time to have a matter dealt with than other options, provided that the parties make themselves available for mediation sessions in a timely manner.
- You have the benefit of a skilled independent professional to assist in helping you and the other party generate options and reach a settlement or develop an action plan to move forward.