Mediation is a facilitated negotiation and first step in conflict resolution typically recommended before further litigation. The mediator plays an important role in helping the parties understand each other’s interests and helps them generate options to come to an agreement on how to move forward.
First off let me acknowledge the difficult situation you’re in. No one goes to mediation because they are happy with their circumstances or they’ve been able to come to an agreement already. You might be preparing for a fight. You might be worried about showing your emotions or being on the receiving end of an outburst from the other party. You might be worried about how things will turn out, or that you’ll be forced to concede too much.
Know that your mediator is there to help. They’re there to give you the space to tell your perspective and help both sides come to a resolution they can live with. Here’s what to expect, and some tips to make the process a little easier for you.
What is mediation?
The Canadian Bar Association defines mediation as “the intervention into a dispute or negotiation by an acceptable, impartial and neutral third party who has no decision making power, to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute”. It’s a meeting where you have someone facilitating your discussion, helping you draw out the underlying issues, and encouraging you to brainstorm options and possible solutions to come to an agreement that works for both parties. It’s not like going to court, where you present your case and a decision is imposed on you (and may not be in your favour). In mediation, you have the opportunity to be heard and to co-create an outcome that will save a lot of time and money.
Mediation is voluntary unless required by legislation prior to going to court (like in the Ontario Mandatory Mediation Program – more on that here). During the mediation, parties are not forced to agree to anything they don’t feel is reasonable – the option to continue going to court is still there if the parties can’t move through an impasse. Parties can also walk away from the mediation if they choose to. If this is what you decide, take a few minutes to discuss this with your mediator first so they know where you’re at and can support you to continue, or discuss what ending the mediation would look like. For example, if you believe the other party is being unreasonable or not trying to move forward, take some time to discuss this with your mediator privately, and then they will have a private conversation with the other party to try and move things forward.
The mediation procedure is very different from court proceedings – it’s informal and for some, may be more relaxed. You won’t be sitting in a courtroom or called to the stand. The mediator will provide some ground rules and suggestions for how to best engage with each other (like no name calling, not interrupting the other person), but the process will flow more like a discussion, with each party having an opportunity to be heard. The mediator will be asking questions for clarification and understanding – not to find evidence of who is right or wrong. Mediation is also a confidential process (within limits) whereas the court proceedings are made public. Mediation gives you the best chance of coming to a resolution in private, without having to worry about giving evidence and proving your side of the story.
Why it works:
Mediation can be effective because it takes the focus away from who is to blame or who is right and wrong and shifts it to what the parties really care about, and what they need to move forward. It provides both parties with a chance to tell their perspective, express things they’ve been holding onto like regret or anger, and it gives each side the opportunity to ask for what they need in order to resolve the issue. In cases where the relationship between the parties is important (intimate partners, workplace colleagues, neighbours), it gives them the opportunity to rebuild their communication and understand what the other needs to feel heard and respected.
Mediation is not restricted to the initial complaint – the parties can bring up whatever is concerning them and stopping them from reaching an agreement. Mediation provides structure and support for difficult conversations – you’ve got an intermediary to help translate and help each side understand each other and refocus the conversation on collaboration when necessary. They keep the focus on the future because they’re not trying to find fault or who to blame – you don’t need to convince them you’re right and the other person is wrong. It’s only about how you move forward.
What’s the role of a mediator?
Again, the mediator is not there to decide the outcome, they are a guide for the process. When they ask questions, it’s not to gather evidence, they are to reframe and clarify to get to the underlying issues that the parties want to resolve. The mediator is going to encourage a cooperative atmosphere, and the parties will do the work of brainstorming options to create the solution they want.
Depending on the issues in question – the mediator may take more of an active role in terms of providing specific expertise – this is what’s known as an evaluative style. This kind of mediator is likely to focus on the legal rights of the parties and the strengths of their case, including what may happen if they don’t reach an agreement. A facilitative mediator is going to focus more on the interests of the parties and their goals, and why they are taking their positions. This kind of mediator will focus on the process of mediation, and try to remain neutral and without imposing their own values when it comes to the options for settlement.
The Canada Department of Justice provides a thorough list of how the mediator will help:
– Encourage exchanges of information
– Help the parties understand each other’s views
– Let the parties know that their concerns are understood
– Promote a productive level of emotional expression
– Lay out the differences in perceptions and interests
– Identify and narrow issues
– Help parties realistically evaluate alternatives to settlement
– Suggest that the parties take breaks when negotiations reach an impasse
– Encourage flexibility and creativity
– Shift the focus from past to future
– Shift the focus from one of blame to a creative exchange between the parties
– Hold caucuses* with each disputant if there is deadlock or a problem (*a caucus is a private meeting with one of the parties – these can be used at any point during the mediation)
– Propose solutions that meet the fundamental interests of all parties.
Benefits of mediation:
There’s two main benefits of going to mediation – what you’ll save in terms of time and money rather than going to court, and the opportunity to co-create your own solution rather than having one imposed on you. While the costs will vary based on the mediator you select and the amount of time needed for the mediation, it will be significantly less than going to court. Costs are generally split between the participants, giving everyone a stake in the process.
You’ll also spend a fraction of the time you would preparing for and participating in court proceedings, not to mention the time you’ll spend waiting for your actual court date. And what if there is an appeal? The court process could go on for a very long time, and that’s a stress I wouldn’t wish on anyone.
In terms of the outcome, mediation is the process where you have the chance to have input into the final results. In litigation, you really don’t know what your chances are until you go through the process, and once that’s started, you are bound by the decision the judge makes. In the courtroom, both lawyers likely feel their case has merits and a good chance of being decided the winner, but unlike mediation, only one of them will be right on this.
There is also the benefit of having the opportunity to rebuild and repair what needs to be an ongoing relationship, but this may not be relevant to your situation. When the relationship component is important, mediation can help make the process less adversarial. You’re in a collaborative atmosphere, where the focus is on brainstorming possible solutions that aren’t limited to what the law prescribes. By working together to come to an agreement, you’ll create goodwill, respect and a better understanding of what both parties need in the future.
Your mediator also has a responsibility to make sure that they are addressing a power imbalance or difficulty communicating so neither compromises the mediation. They may do this by meeting separately with the parties to address where each may need support with communication and make suggestions as to how to do so.
Drawbacks of mediation:
It’s non-binding and the agreement is not enforceable. I actually think this is a benefit, because it encourages both parties to come to a solution that works for both of them, rather than something that is imposed by the court. Something they can live with in an effort to put the situation behind them. But it’s important to understand that there is a possibility that even coming to an agreement in a mediation may not lead to a final resolution. If this is the case, there is still the option of continuing with arbitration or litigation. Since it’s private and non-binding, mediation won’t produce legal precedents, but it could lead to outcomes that enable organizational change and policy updating.
There may be a concern around in-person face to face mediation, especially with cases like bullying and harassment, or where there is a fear of violence. Now that more mediators are providing services virtually, this may be mitigated by participants being able to see each other but not be in the same room. But not all conflicts are suited for mediation. If you feel you’re being intimidated into participating or coming to a settlement (especially so one party can avoid litigation), mediation is not an appropriate option for resolution, and please discuss this with your mediator as soon as possible.
What happens in mediation:
Once you’ve agreed to mediate, whether in person or virtually, your mediator will facilitate the process by going through the following steps. This is a flexible process, but will generally include the mediator outlining the process of mediation, after which they’ll ask each party to give their perspective – what brought them to the mediation. Then they’ll reflect back what they’ve heard, reframe some of the statements to identify the underlying concerns and needs, they’ll ask some clarifying questions, and summarize to review what’s been said and check for understanding between the parties. This is the part of mediation where they are trying to determine what each party wants and needs to move forward.
Once the mediator has a grasp of the interests and problems to be resolved, they’ll ask the parties to spend some time brainstorming options – it can be helpful for them to suggest that these options are without criticism or commitment to them. It’s just about generating a range of possibilities that start to meet the needs of the participants.
With the options that have been suggested, they’ll look to the parties to evaluate them and see what best meets their needs, and once they’ve decided what their settlement could look like, the mediator will assist them with drafting their agreement. Even if the parties don’t come to an agreement, the mediator will help them to have some form of closure on the day, even if it’s just thanking them for their time and recapping the progress they have made.
The whole mediation process can be done with both parties in the (virtual) room together, and the mediator may take time during the mediation to speak with the parties individually (this is called caucusing). When a mediation is particularly bitter or hostile, the mediator may keep the participants separate and bring messages back and forth between them (this is called a shuttle mediation).
How to prepare for mediation:
You’re likely to have a chance to talk to your mediator individually prior to the actual mediation session. Give them an opportunity to hear your concerns so they can structure the mediation in a way that will address them. Do you need any accommodations or language support? What are you worried about?
Nowadays, more mediators are offering virtual mediation, so for this, make sure you check your internet connection, your video is working, and your headphones are charged/your audio is working. Have a space where you won’t be interrupted – put a sign on the door if you need to. A notepad and pen (or however you take notes) can be really helpful for times when you have a thought that you want to remember to bring up but it’s the other person’s opportunity to speak (interrupting someone is not helpful to the process). It’s tempting to have your phone there to keep tabs on what’s going on outside the mediation, but it’s best to put it away or on silent so you can fully participate. An out of office note can be helpful if people are used to or expecting you to respond quickly.
I’m not going to tell you to go in with an open mind or to have some compassion for the other person. If you’re not there, don’t force yourself to be. Think about what you want the mediation to accomplish – what are you hoping will be resolved? Are your expectations realistic? What happens if you don’t settle? What are the costs and timelines if you were to go through litigation?
One more thing. Bring snacks. No one is creative or collaborative if they’re hungry.
Conclusion:
Mediation is one process in dispute resolution that helps the participants move away from legal concepts like fault and encourage them to share their perceptions and experiences to better help them get their needs and interests met. It’s your best chance to have some control over the resolution process, tell your perspective, and resolve your dispute in a timely, cost-effective manner. It’s likely to be lower stress, during and leading up to the meeting compared with going to court, and you won’t have a solution imposed on you. It’s the best way to come out of a conflict with an understanding of how you want to move forward, and an agreement to help get you there. Mediation has a high success rate, but not all mediations will result in a settlement, so it’s important to acknowledge that you’ve tried, and you’ve likely made some progress towards this.
Need more information about mediation and how it can help you resolve a dispute? We’re here for you.
References
Beer, J. E., Stief, E., & Packard, C. C. (2012). The mediator’s handbook. Gabriola, B.C: New Society Pub.
Handy, J.F., Stitt, A.J., Mitha, N. (2020). The process of mediation. Stitt Feld Handy Group
Government of Canada, Department of Justice. (2015, March 04). Dispute Resolution Reference Guide. from https://www.justice.gc.ca/eng/rp-pr/csj-sjc/dprs-sprd/res/drrg-mrrc/04.html
Moore, C. (2019). The Mediation Process: Practical Strategies for Resolving Conflict, 4th Edition.
What is ADR? (n.d.). from https://adr-ontario.ca/for-the-public/what-is-adr/
