Mediation is a process through which parties attempt to resolve their dispute or disagreement themselves rather than have a third party decide it for them. A third party mediator is present to help the parties, but not to make a decision for them. Sometimes parties will agree to have the same individual act as mediator and, if no agreement is reached, an arbitrator to make a decision. Those situations are less common, however, and involve different considerations than a pure mediation.
Mediators are often selected by the parties themselves and have no personal stake in the outcome of the mediation.
Mediators receive professional training and accreditation. The most effective mediators have finely honed listening and communication skills. A mediator’s critical responsibilities are to help participants: to listen to each other; to understand the issues from each other’s perspective; and to develop solutions that satisfy both parties.
Parties to a voluntary mediation can agree on the format of mediation with input from the mediator. In most circumstances where mediation is mandatory, parties have less freedom to customize the format of mediation.
Mediation can proceed with or without lawyers present. Anyone involved in a legal dispute proceeding to mediation is encouraged to obtain some legal advice even if the lawyer is not going to be present. The mediator will not provide legal advice, but may share his or her perspective in an effort to help the parties find a mutually agreed resolution.
If the parties are able to reach an agreement that resolves the dispute, that agreement is usually put in writing and signed. Lawyers are then often involved in order to ensure the agreement is enforceable and comprehensive. Not all mediations are successful. Parties who are unable to resolve their dispute through mediation are usually free to pursue other dispute resolution processes, including litigation.
When is mediation appropriate?
Some court processes require mediation as a step in the litigation process. All case-managed civil actions in Ontario are automatically referred to mediation, except for family law disputes. Parties can seek an exemption by court order. In addition, legal proceedings relating to estates, trusts and substitute decisions are also automatically referred to mediation unless exempted by court order.
Mediation is not free. The mediator is paid by the parties. The fees are split between the parties equally unless they agree otherwise. The costs of voluntary mediation are arranged between the mediator and the parties. The costs of mandatory mediations are subject to government regulation
In Ontario, the Commercial Mediation Act, 2010 allows parties to register mediated settlements of commercial disputes with the court. Those registered settlements become enforceable like a court judgment. The Act also establishes processes for the appointment of mediators, conduct of mediation, and confidentiality.
Mediation is not always appropriate. Unique legal situations that have never previously been determined by the courts may not be amenable to mediation. Mediation may not be appropriate where there is a significant imbalance in power or resources between the sides to a dispute, particularly where the weaker party does not have independent legal advice.
Mediation may be an effective tool to resolve family disputes relating to marriages and similar relationships, children, and property. It is not an appropriate, however, where there is a history of domestic violence or abuse. Parties are particularly encouraged to have legal advice at or in advance of any mediation of family issues.
Why do many people choose to resolve disputes by mediation instead of or before pursuing the issue in court? There are many reasons, but three in particular:
- The parties are able to reach their own, uniquely tailored resolution with the possibility of imaginative and creative solutions that court may not be permitted to reach;
- Costs of mediation are significantly lower than costs of litigation;
- Mediation can be arranged much more quickly than litigation.
If you are involved in a situation that you feel could be resolved through mediation, speak to your lawyer about how to find a mediator and start that process.
Dispute Resolution Reference Guide
Family Dispute Resolution: Several Options