Mediation

What is mediation?

Mediation is a free, voluntary and confidential process involving two or more parties in a dispute, and a third party, known as the mediator, who outlines the facts and issues of the dispute and assists the parties in developing a solution that meets everyone's needs. Mediation can also be used to prevent a potentially litigious situation from degenerating.

Mediation has many advantages. Here are some of them:

It is faster and less expensive than a traditional decision-making process;

  • It allows the parties to gain a better understanding of often complex situations through respectful and direct dialogue;
  • It allows the parties to consider a broader range of resolution options;
  • It gives the parties more control over the outcome of the conflict since they agree on a solution;
  • Since the solution is chosen by the parties, there is a greater chance that it will be respected by both parties;
  • It enables the parties to more effectively rebuild or maintain their relationship (which is undeniable asset in workplace disputes or conflicts between clients and suppliers).

 

What is a mediator?

Mediators are professional problem solvers. They are neutral, impartial and trained specifically to carry out a successful mediation process. Their creativity and detachment from the problem are both major assets that help them move the mediation process forward. Mediators do not make decisions or impose solutions on the parties to the mediation. Their role is to help the parties develop one or more acceptable solutions as peacefully as possible. If required, they will help the parties re-establish contact when communication fails.

Since they are neutral third parties, mediators do not provide legal advice or opinions or assess the chances of a complaint or case being successful before the court.

Before working with a mediator, the parties to the mediation agree with the mediator that all discussions will be confidential, and even if the mediation fails, the mediator concerned cannot be forced subsequently to confirm information about the dispute or the dialogue between the parties.
 

What types of disputes are best suited to mediation?

There are few disputes that are not well suited to the mediation process. In fact, it is not usually the type of conflict that poses the problem, but rather the underlying intentions of the parties. With that in mind, disputes that are not well suited to mediation are cases where one of the parties:

  • Wants the conflict to last a long time (hidden intentions);
  • Considers dialogue as a form of weakness;
  • Deliberately tries to wear down the other party because they think that it will not be able to bear the pressure;
  • Is invigorated or excited by the stress involved in a hearing before an arbitrator or judge;
  • Prefers the easy way out and gives up its free will in favour of accepting a binding decision;
  • Takes pleasure in harbouring distrust, anger and frustration;
  • Considers itself morally untouchable when dialogue is interrupted and repeats to anyone who will listen that the other party is undoubtedly at fault.

The cases that are most likely to succeed when the parties agree to begin the mediation process are:

  • Interpersonal conflicts of any type, whether they are between individuals or groups of individuals (problematic employment terminations, psychological harassment, etc.);
  • Family matters (separation, divorce, child custody, etc.);
  • Any form of contractual dispute (labour contract, supplier-client, etc.)

 

When is the right time for mediation

Mediation by mutual agreement 

Mediation may be considered by either of the parties. The mediation process starts when one party suggests the idea to the other party and presents it as a potentially productive process for both parties. The party may submit a proposal to the other party or ask a third party to do so on its behalf. 

When the parties have agreed on the mediation process, they must choose a neutral third party whom they both trust: the mediator. Just like all other experienced professionals, mediators may have something in their personal background that is questioned by the parties. For example, mediators may have worked for a union or as representatives of an employer in labour disputes. Mediators must be chosen for their ability to stay perfectly neutral despite their professional background. Certified mediators are trained for exactly that purpose.

In all cases, each party should communicate with the potential mediator to allay any concerns about partiality. Mediation is successful when the following two key success factors are involved: Both parties want to resolve the dispute and trust the mediator.       

Ultimately, because it is a voluntary process, a party may justifiably withdraw from the process if it feels that the mediator lacks neutrality in words or actions after expressing its concerns to the mediator.

The cost of mediation is split by the parties, unless they agree otherwise.
 

“Conventional” mediation

In some types of employment or other contracts, the parties may agree at the outset to use mediation to resolve any potential conflict. There is no specific formula; contracts may include a whole range of terms and conditions, provided they are lawful. It is also possible to agree on pre-mediation procedures, the choice of mediator and the general scope of the mediator’s engagement, the various limitations imposed or methods of determining those limitations (e.g. on the duration, environment or responsibility for the cost of the mediation).

In addition to the criteria set out in the contract, the general rules of mediation are applied exactly as they are in mediation by mutual agreement. The parties' desire to resolve the dispute and the trust they place in the mediator are the key success factors.

 

Frequent questions

 

How does a mediation session work?
 

First, the mediator communicates with each party to obtain their written mandate, which outlines the process. The purpose of this step is also to obtain as much information as possible about the actual or potential dispute. Whatever the circumstances, anything you say or give to a mediator remains absolutely confidential.

Then, the parties meet at a predetermined location that they have agreed upon and begin the discussion.
 

How long does the mediation process last?
 

Since no two cases are the same, no two mediation sessions are the same. In many cases, the parties work with their mediator to set a reasonable preliminary timeframe for the process and formally agree on it. The timeframe depends on the type of dispute and its complexity. Since the process is voluntary, the parties may very well agree, based on the progress in their discussions, to give each other more time in the search for a satisfactory solution or simply end the process if they believe that it is impossible to find one. It is the parties that lead the way, not a judge!  

Can my representative accompany me at the mediation sessions?
 

There is no formal etiquette in the mediation procedure. The important thing is that the main people who are involved in the dispute and have the power to agree on a resolution are present. Given the confidential character of the mediation, the individuals concerned and their representatives (lawyer, union advisor, etc.) should be present. This issue must be dealt with at the very beginning of the process and understood by all.
 

Will I be required to speak?
 

Mediation is an ideal opportunity to share your point of view and help the other party understand your version of the facts. A productive mediation session is generally a meeting where people communicate. Remember that the person who accompanies you is there to support you in the process, not to speak on your behalf. 

Sometimes tensions can rise to the point where meeting face to face may no longer be appropriate, or where one of the parties may no longer be able to stand the other’s presence. In that case, mediators will use private meetings known as "caucuses" in order to move the mediation process forward. In particularly delicate situations, a caucus can also be used as a private meeting with the mediator to help him or her better grasp
the issues.

 

Can I have someone testify?
 

The site where the mediation takes place is not a court. The goal is not to prove your point but rather to work toward a satisfactory agreement for both parties. Discussions are focused on the solution, not the conflict. However, in extremely technical cases, the parties may agree to hear experts in an effort to contextualize the problem so that each party has all of the information it needs to resolve the dispute. Yet, this is rather rare,
except in cases involving civil liability and insurance.

 

Will we definitely reach an agreement?  

There is no guarantee. However, the statistics show that 80% to 85% of cases that use mediation end in an agreement.

 

If there is an agreement, is it only verbal?

A verbal agreement is possible, but not ideal. Even when the parties to a mediation act in good faith, it is possible for them to inaccurately interpret an aspect of the agreement. A written document is always preferable. Usually, the parties will ask their mediator to draft a document that sets out the terms of the agreement. But if they are represented, they may also agree to have one of their representatives draft the document and send it to the other party.


Feel free to ask any other questions you might have.