Mediation is sometimes referred to as Alternative Dispute Resolution (ADR). Mediation services offer a way to resolve conflicts and disputes between families, individuals or organizations without involving a court; many people prefer this method as it involves a more informal approach to problem solving; family law mediation has been a particularly successful way of resolving domestic disputes. Some courts refer cases to mandatory mediation before permitting the case to court; the Ontario mandatory mediation program is compulsory for all civil cases, which are defended except family law cases, which have been lodged with a court. During the mediation process, the disputants are supervised and guided through the issues under discussion by a neutral, trained mediator, which they themselves have appointed. The aim of mediation is for all parties concerned to reach a mutually satisfying agreement without the need for litigation. Each of the disputants states their grievances and their perceived solutions and the mediator helps all sides to compromise. Unlike going to court or arbitration, mediation allows the final solution to the problems to rest with the disputants and not with a third party.
Benefits of Mediation
Mediation is an informal, cheaper and less aggressive way of solving disputes. Using mediation as a method of solving disagreements means that there are no embarrassing court appearances, where personal issues are brought out into the open court, indeed with mediation, personal issues can remain private and there is no strict code of conduct to follow, so all parties may speak more freely than if they went to court. Confidentiality plays a crucial role in mediation and mediators cannot be forced to give evidence in court unless the case involves actual or threatened criminal acts or child abuse. As part of this confidentiality agreement, mediators are not required to keep their notes once a solution has been found. Unlike pursuing a dispute through the courts, there is no complicated paperwork to file. Costs are also much lower because you do not have to have a lawyer present, nor do you have to pay to file your case or pay witnesses to attend your mediation session. In court the disputants do not have the opportunity to put over their side of the dispute and to consider other options. On top of this, the final decision is imposed upon them by the judge. In mediation both parties can state their case and examine various solutions, which satisfy all disputants fairly.
Disputes for Mediation
One of the most common forms of mediation is family law mediation, which is frequently used to solve disagreements like disputes over wills and estates, adoption, divorce, separation, child welfare and disagreements between teenagers and parents. Other issues suitable for mediation include disputes regarding insurance, banking, property and real estate, leases, consumer contracts and transportation. The aim of mediation is to solve a dispute peacefully with the minimal amount of emotional strain. If mediation breaks down and a solution is not possible the problem can be addressed through legal action; for example a dispute over an unpaid debt may be taken to the Small Claims Court or to arbitration. Before commencing with mediation both parties may want to consult the advice of a lawyer and may decide to bring their lawyer into the mediation session with them.
Family Law Mediation
Family law mediation works for a number of domestic disputes. It is particularly useful as part of a divorce mediation where decisions about children must be made. Family mediation allows estranged or divorced parents to meet in the presence of a qualified, unbiased mediator who allows the parties concerned to solve parenting arrangements in the best interests of the children without the children themselves having to take sides or get involved in the decision making process. Issues that are usually brought up in family law mediation are living arrangements and how the children will share their time with each parent, who will make the day-to-day decisions about the children’s lives and the financial support of the child. Often mediation is conducted between the caregivers and parents and with Children’s Services. Through discussion and problem solving, families can also learn to improve their communication skills, making it easy to resolve future disputes. If you are looking for Ontario family mediation, The Ontario Family Association for Family Mediation explains the family mediation services available in the province and can help you find an Ontario mediator specializing in family law mediation.
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Mandatory Mediation
In some Canadian provinces, most cases, notably civil disputes like contested estates, trusts and substitute decisions matters are referred to mandatory mediation unless there is a court order exempting them. The Ontario Mandatory Mediation Program exempts family law cases, which have been filed in court, from mandatory mediation. Under the Ontario Mandatory Mediation Program, all parties have to compile directions regarding the issues in need of mediation within 30 days after the last day for serving a notice of appearance and the court will appoint one of the parties with the carriage of the mediation; this means that this party will have to organize the mediation session. The court may intervene over the issues, which should be discussed during mediation along with the time frame in which it should be carried out. The costs of the mediation session may also be apportioned to each side via the courts. Once this framework has been approved by the court, the disputants have 30 days in which to agree on a mediator otherwise one will be appointed to their case by the court. In the case of disagreement over the mediator, the party with carriage of the mediation has to notify file with the Local Mediation Coordinator to request that a mediator is assigned to the case. Once a mediator is appointed, the mediator must set a date for the mediation and serve notice regarding the date, time and venue on all who must attend at least 20 days before the mediation session. A minimum of 7 days before mediation, all disputants must give the mediator and all of the other disputants a Statement of Issues. Any documents involved in the dispute must be included with this document.
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Attending Mediation
Everyone involved in the dispute must be present at the mediation session. If you are using family mediation your children do not need to be present; minors under the age of 18 years old are not allowed to participate in mediation. You do not have to use a lawyer to represent you, but if you are using a lawyer, they too must attend. They cannot represent you – you must be physically present at the mediation. You will also need telephone access to anyone who can help you to settle the dispute once a solution is agreed. If your dispute involves a company, a member of staff who has the power to make a decision on behalf of the company must attend. Anyone with a disability that impairs their decision-making process or anyone suffering mental illness is not allowed to participate in mediation sessions.
Mediation Timings
Mediation is a much faster solution to solving disputes than taking legal action; disputes may be resolved in a matter of hours. Mediation can be sought immediately rather than relying on the courts to process paperwork and set dates. Solutions are also far faster to reach when all parties sit down and discuss the dispute in depth together. The length of a mediation session and the number of sessions required depend on a variety of factors, including the complexity of the case, how well the parties have prepared for the mediation, how far they have progressed in settlement discussions and whether the mediation process is working. Under the Ontario Mandatory Mediation Program mediation should not last more than three hours, although the mediator has the ability to extend the session providing all parties consent. Likewise if the mediator feels that the mediation session is not moving towards a satisfactory outcome, the mediator can terminate the session. When cases are referred for mandatory mediation the court imposes a time limit in which mediation must take place. Ontario Mandatory Mediation sets a time limit of 30 days from the date when a court case was defended.
Mediation Locations
The disputants can choose a mutually convenient mediation location. This could be for example at one of the disputant’s homes or offices, at the mediator’s office or a lawyer’s office. In cases of mandatory mediation, disputants may choose to use a room at the courthouse. A neutral meeting place is more likely to foster a better mediation session than meeting on another party’s territory. When choosing the mediation location, you should also try to meet any special needs of the other participants and provide access to food and drinks as well as comfortable seating.
Finding a Mediator
Mediators are qualified people skilled in techniques aimed at improving discussion between all parties concerned. Their training in mediation techniques must be approved by the Attorney General in each province. The mediator’s ultimate goal is to ensure that the disputants reach a mutually acceptable agreement in a constructive and fair manner. Mediators mediate between two or more opposed individuals or groups because they are perceived as being impartial to the topics under discussion. Both parties should agree on the choice of mediator unless mediation is mandatory and a mutual choice cannot be reached. In such cases a mediator is appointed by the Local Mediation Coordinator. It is wise to choose a mediator who specializes in the area of the dispute e.g. many mediators specialize in family mediation and if your dispute is of this nature then a family mediation specialist will be well versed with the issues under dispute. You should also consider the mediator’s qualifications, experience and style of mediation; ask for references before you make an appointment. The mediator’s knowledge of the court process as well as their fees should also be taken into account. You can find a list of mediators from the Local Mediation Coordinator. It is wise for all parties to meet with the mediator prior to the main mediation session – statistics show that those disputants that do, register greater satisfaction and success in the dispute resolution process.
Mediation Fees
Mediation fees can be similar to those of a lawyer, but the mediation process is usually far quicker and does not involve application fees to court. Mediators that are on the court roster of approved mediators will have set fees; in Ontario a 30 minute preparation session and mediation session up to 3 hours between two parties costs $600 + GST whereas in Quebec mandatory mediation is sometimes free of charge. The mediator may also charge expenses, which should be agreed in advance between all parties. If a solution is not found within the three hour mediation session, the disputants may agree to extend the session at a rate negotiated with the mediator. The disputants usually share the cost of the mediator equally unless the court orders differently. If you are unable to pay the mediator’s fee due to economic hardship and you can prove this with a legal aid certificate or by meeting the criteria laid out by the Ministry of the Attorney General you may be exempt from fees. More information can be obtained by contacting the Local Mediation Coordinator in your province.
Mediation Preparation
Many lawyers and judges recommend mediation before matters reach court. There are certain factors to consider before setting a mediation session; both parties should be ready to mediate and should do so on an even playing field e.g. if one party is using a lawyer the other should consider doing so too. Timing is important e.g. one or more of the parties involved may not be emotionally ready to be objective if the mediation is set for a date soon after a loss or injury, which forms part of the dispute. If the dispute revolves around an injury, enough time must have passed to evaluate the actual losses experienced. Sometimes an interim mediation session, to settle short term issues rather than the whole dispute provides a solution – the interim session takes the same format as any mediation session but the participants aim for a short term solution to the dispute with the commitment to revisit the dispute for a more suitable solution at a later date. Prior to the mediation session each party should consider various scenarios for a solution and prepare their argument over the dispute in question. What is the best result each party can hope for in the lawsuit and what is the worst result that could happen? Some provinces recommend that each disputant take legal advice before attending their mediation session. You must enter into mediation looking for a win-win solution and to this end it is worth considering what the important issues are to each side. Consider each parties concern and prepare possible solutions, familiarize yourself with any limitations to solving the dispute and take into account which direction the grievance may go if it is not solved through mediation.
The Mediation Session
At the mediation session, the mediator clarifies the mediation process and outlines the details of the session often by presenting a document known as an Agreement to Mediate. At the mediation session, each party takes turns to state their grievances and to ask questions. The defining issues are laid out and witnesses and evidence is often presented. The mediator oversees the dialogue by keeping the topics relevant to the dispute and by drawing the session towards a solution. Sometimes the mediator may ask for a break in the session to talk alone with one of the parties. If a successful solution is found the parties may make a written or verbal agreement and are legally bound to follow this. Obviously a written agreement is more concrete and you should ask for this in your mediation session. The mediator is responsible for drawing up a written agreement detailing the agreed solutions. It must be signed by all parties and any lawyers involved. In the case of mandatory mediation, the defendant or his / her lawyer must advice the court of the settlement within 10 days of an agreement being signed by filing a notice with the court.
Enforcing Mediation Agreements
Whilst the content of the mediation session is confidential and cannot be disclosed in court, any agreements made at the mediation session are legally binding. Therefore if one of the disputants fails to observe the agreement, the other disputants may make a motion for judgment or enter into legal proceedings or arbitration. For mandatory mediation, the mediator may cancel the session if one or more parties fail to put forward a Statement of Issues. Likewise the session can be cancelled if they fail to attend the mediation within the first 30 minutes. In such cases a Certificate of Non-Compliance is issued by the mediator and it must be filed with the court and the party who failed to comply with these rules is responsible for paying the mediators cancellation fee as well as being receiving court sanctions.