What is mediation? Mediation is a voluntary, non-adversarial and usually confidential negotiation process in which people with a dispute work with an impartial mediator to seek a mutually agreeable solution to a problem. What is the role of the mediator? A mediator is an impartial third party whose job is to help the parties find a solution they both consider fair and workable. The mediator does not assess blame or judge who is “right” or “wrong”. The mediator is more like a coach or referee who helps the parties to the dispute work through each issue in a fair and balanced way. The mediator's role is to provide a fair process and a safe place to have difficult conversations. Will the mediator take sides? Most mediators do not take sides. A good mediator will focus on helping the parties clearly understand and be able to express fully their own needs and goals. The mediator seeks to ensure that each party hears and understands the other's needs and goals, so that they can work with the mediator to find a solution that meets as many of their respective needs and goals as possible. What if I feel intimidated by the other party? Part of the mediator's job is to create a process that is fair and balanced. This means addressing any fears or concerns that a party has that he or she may not be an effective negotiator. Sometimes the mediator must work with the parties, individually and together, on communication, listening, and trust issues before the actual mediation of the substantial issues can begin. Sometimes a mediator will separate the parties if fear, intimidation or intense emotionality is preventing a fair mediation process. The mediator should always be sensitive to this issue, and should check in with the parties frequently to see how they are finding the process. Mediation is not a good option if fear or intimidation makes a fair and balanced process impossible. How does mediation work? In family mediation, the mediator will first meet with each party individually. During this meeting the mediator learns what the issues are for each person, and how clearly each person is able to express the issues and his or her needs. The mediator will ask about perceived obstacles to settlement, any concerns each person has about the other person or the mediation process, what each person needs in order to feel comfortable and "empowered" in the negotiation, and what each person wants to achieve in mediation. The next meeting is generally with the parties together and the mediator. There are as many joint meetings as are necessary for the parties to reach an agreement or decide to terminate the process. Commercial mediations often occur in the context of a lawsuit, and the parties often have their lawyers present. Most commercial mediations begin with all parties and counsel present , with the parties breaking into separate rooms for part of the negotiation. • back to top What do “Without Prejudice” and “Confidential” mean? Most mediation is “without prejudice”, meaning it is a settlement discussion that cannot be used by either party as evidence in any legal proceeding, and the mediator cannot be a witness in a legal process. All mediation under the Ontario Mandatory Mediation Program is “without prejudice”. Most privately-conducted family mediations are called “closed mediation”, meaning without prejudice negotiations. The only time mediation is not “without prejudice” is if the parties agree that it will be “open mediation”, something that parties in matrimonial disputes sometimes find useful. Most parties in family and civil mediations also want their mediation process to be “confidential”, meaning that the parties and the mediator agree that they will keep everything said and done during the mediation confidential to themselves. If confidentiality is desired, the agreement to mediate must specifically address it. Obviously, open family mediation is neither without prejudice nor confidential; most closed mediation agreements provide that the process is both without prejudice and confidential. Court-provided mediation in Ontario's Family Courts is generally always closed with a limited exception. Can I tell the mediator anything that I don't want her to share with the other side? At Riverdale Mediation, all information exchanged between a party and the mediator during a private caucus can be disclosed by the mediator to the other party at her discretion. If a party wants the mediator to keep something confidential from the other party, the mediator's agreement is required first. How does the mediator charge? Most mediators charge by the hour. Retainers are not required but parties are expected to pay at the end of each meeting. How many meetings are usually required? Many commercial mediations settle at the first meeting. Many people coming to mediation, however, need some time to work through the emotions that form part of the dispute. This is why mediations involving family and estate matters, libel and slander cases, employee dismissal cases, neighbour disagreements, parent-school disagreements, and so on, often require more than one meeting. Most family law mediations take several meetings, depending on how well the parties communicate and how many issues there are. What if the issues are very complicated? Mediation is an excellent way to work through complex legal and factual issues, including difficult or sophisticated financial disclosure and valuation issues, contract disputes, complicated property settlements and difficult parenting plans. Many complex, multi-party disputes have been resolved creatively in mediation. In mediation, the parties are able to work through issues and obstacles as they arise, and to consider options together in a productive, efficient way. Time and money is saved by hiring professional appraisers and valuators together and by having all information shared. What if the parties' relationship is very conflicted? Mediation works well in high conflict situations, as long as the parties are using the process to reach consensus, not to wage war with each other. Mediators are trained communicators; they are skilled at helping people in extreme conflict find ways to talk to and hear each other without escalating the conflict. Mediation often helps people come to terms with the way they have been treated and allows parties to find solutions that are acceptable to everyone. Mediators are also accustomed to working closely with professionals in the counselling and mental health fields. Experienced mediators will recognize situations where professional counselling may help the parties get more out of the mediation process, and will refer the parties to good resources. • back to top Do mediators provide legal advice? Mediators do not provide legal advice, although many will provide relevant information to help parties use the process more effectively. Clients at Riverdale Mediation are given a wide range of printed information relating to legal and other aspects of their dispute. Clients at Riverdale Mediation are encouraged to obtain good legal advice at the beginning of the mediation, and throughout the process so that each person can negotiate with all information necessary to make informed choices throughout the process as needed. Does the mediator draft the parties' agreement if we settle? Most mediators working outside of court settings do not draft the actual legal agreement; rather they prepare a memorandum of understanding that reflects the mediator's understanding of the parties' agreement. This allows all parties to have time for reflection, to receive legal and financial advice and any other input they need in order to consent to the settlement in an informed and therefore truly voluntary way. In family mediation at Riverdale Mediation we will draft memoranda that mirror the likely terms of the final agreement, using a precedent that has been published by the Law Society of Upper Canada. The goal is to make it as easy as possible for the parties and their lawyers to finalize the document. What rules govern mediators? Mediators who are lawyers are governed by the professional conduct codes of their governing body; in Ontario this is the Law Society of Upper Canada. Mediators who belong to mediation organizations voluntarily agree to comply with the codes of conduct of those organizations. Mediators who are conducting mediations under the provisions of the Ontario Mandatory Mediation Program are governed by another code. Mediators are not required by law to carry liability insurance although most do. Some of the relevant codes of conduct are: Law Society of Upper Canada Rules of Professional Conduct Ontario Bar Association Model Code of Conduct for Mediators Family Mediation Canada member's code of Professional Conduct Ontario Association of Family Mediators Code of Professional Conduct Ontario Association of Family Mediators Abuse Policy Ontario Mandatory Mediation Program Code of Conduct • back to top