Mediation is a voluntary process in which a neutral person helps parties negotiate an agreement. The mediator may not make decisions for the parties, and the parties may end the mediation at any time. The mediator guides the parties through the issues, while assisting them to communicate respectfully and productively.
The process is very flexible, and can cost significantly less than traditional negotiation or litigation, as the parties share the cost of the mediator. Most importantly, the parties design their own solution, in accordance with their own values and goals.
The Mediation Process
Once both parties have indicated their willingness to mediate, the mediation process will begin.
The mediator will meet with each party individually prior to commencing a joint session. She will do this to determine each party’s perspective on the issues to be resolved and to discuss the process with the participants, and begin to identify possible resolutions. She will also consider whether mediation is appropriate, and whether any procedural safeguards need to be put into place to address power imbalances.
At the first joint session, the parties begin by signing the agreement to mediate. The discussions then begin. Ground rules for communication are established, issues are identified and options are explored.
The number of sessions required depends on several factors. Many times the parties need to consider options and seek legal advice as to the implications of their choices. They will often need to gather information that will help to identify solutions and narrow issues.
Once an agreement is reached, the mediator will draft a memorandum of understanding, and review it with the parties. the parties will then seek legal advice prior to signing an agreement.
Lawyers are welcome as part of the process, as long as both parties agree. In some circumstances, especially when complex financial matters are being considered, it can be more efficient to have advisors in the room. This has to be balanced with the additional expense that the parties will incur.
Do I need to pay a retainer?
No retainer is needed. You are charged for the time spent in mediation, as well as for any time spent in drafting agreements or reporting letters, based on an hourly rate. Payment is made at the end of each mediation session, by cheque or credit card, and is generally shared by the parties, making it much less expensive than traditional negotiation or court processes.
How long does it take?
The number of sessions needed depends on the issues to be resolved, and what background work the parties need to do. Generally, a first session can be booked within two weeks of the initial contact.
What if I am not comfortable being in the same room with the other person?
This issue would be discussed at the initial individual appointment. In some circumstances, it is not appropriate to have both parties in the same room, and we would conduce shuttle mediation, with each person in a room, and the mediator going back and forth.
Do I still need a lawyer?
Although the mediator is a lawyer, and can identify the legal issues to be resolved, she cannot give the parties legal advice, as that would be a confict of interest. 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.
Do I bring my lawyer to mediation sessions?
That depends on the issues to be mediated, and what the other party chooses to do. With family mediation, most often parties will attend without their lawyers, and seek advice as they need it, as it becomes expensive to have three professionals in the room. However, if there are extensive financial issues to be canvassed, or if one or both of the parties feels that they need the additional support of their lawyer, lawyers are more than welcome.
What happens if we don’t reach an agreement?
Even when a full agreement is not reached, most often mediation can be used to narrow the issues and a partial agreement may be reached. However, before starting mediation, you will want to consider what happens if no agreement is reached. With open mediation, reporting letters may be referred to in subsequent litigation. With closed mediation, only the matters on which there is an agreement may be referred to.
Can we mediate even if we have started litigation?
Absolutely. Mediation is an excellent way to explore resolutions even if the parties are in court. The settlement reached in mediation could be incorporated into a court order. As part of the mediation agreement, the parties agree not to take a new step in the litigation without notifying the other party and the mediator.
What happens if the other side doesn’t want to mediate?
Mediation is a voluntary process. If the other person is unsure or unaware of the process, they should be encouraged to learn about it. However, if they still do not wish to participate, and if they are not required by a previous agreement or a court order to mediate, then another process must be considered.
What happens when we reach an agreement?
In most cases, the mediator will draft a memorandum of understanding, which reflects in detail the issues on which there is an agreement. The parties would meet with the mediator to review the draft and make any necessary changes. They would then review the documents with their lawyers, and the lawyers may make additional changes to protect their clients’ interests before the agreement is signed.