Mediation Questions & Answers

1. What is mediation?
2. What is the role of the mediator?
3. Will the mediator take sides?
4. What if I feel intimidated by the other party?
5. How does mediation work?
6. What do “Without Prejudice” and “Confidential” mean?
7. Can I tell the mediator anything that I don’t want her to share with the other side?
8. How does the mediator charge?
9. How many meetings are usually required?
10. What if the issues are very complicated?
11. What if the parties’ relationship is very conflicted?
12. Do mediators provide legal advice?
13. Does the mediator draft the parties’ agreement if we settle?
14. What rules govern mediators?


1. What is mediation?
Mediation is a voluntary, non-adversarial, confidential negotiation process in which people with a dispute work with an impartial mediator to seek a mutually agreeable solution to a problem.

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2. 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.

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3. Will the mediator take sides?
Your mediator will not take sides. He or she needs to have the confidence of both parties, and does not need to be persuaded that one is right and one is wrong. The mediator will focus on helping the parties understand and express their own needs, the other’s needs, and their respective alternatives to a mediated settlement. The mediator seeks help the parties find a solution that meets as many of their respective needs and goals as possible.

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4. 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.

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5. How does mediation work?
In family cases, the mediator will first meet alone with each party to learn the issues for each person, and how able each person is 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. Lawyers are often comfortable having their clients attend this meeting on their own.

The next meeting is generally with the parties together, their lawyers (if lawyers are participating directly in the mediation) 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.

Civil mediations generally occur in the context of a lawsuit, and the parties often have their lawyers present. In some cases the mediator will want to meet parties and counsel separately before starting the joint meeting, during which the mediator may keep the parties and counsel together or may separate them into different rooms.
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6. 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 “closed”, 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 and all documents prepared during the mediation confidential to themselves.
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7. Can I tell the mediator anything that I don’t want her to share with the other side?
It is common for each party to meet separately with the mediator at one point or another during the mediation. This is called a caucus. The purpose of a caucus is for the party and the mediator to discuss such difficult issues as new information or surprises that have been disclosed; intense emotions that are challenging the process; negotiation coaching; or settlement instructions. It is important for the parties and mediator to discuss the rules of the caucus while they are meeting. Our general rule is that if a party wants to tell the mediator something that he or she does not want disclosed to the other party, he or she must be clear with the mediator about this. Otherwise, we assume that 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.
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8. How does the mediator charge?
Most mediators charge by the hour. At Riverdale Mediation, clients are charged an hourly rate that varies, depending on the experience of the mediator and the service provided. Retainers are often not required but parties are expected to pay in full at the end of each meeting.

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9. How many meetings are usually required?
Most civil mediations settle (or end) at or after 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.

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10. 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 and their counsel 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, sharing information and having the parties and their lawyers work together to solve problems.

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11. 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.

In such difficult cases, it is often particularly helpful for the parties’ lawyers to be present at the mediation. Family law specialists are often highly skilled at working effectively together and with the mediator in such difficult cases.

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.

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12. 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. Our lawyer-mediators can provide useful background and perspective to mediation clients, but they will not provide legal advice. Clients are advised throughout to retain and utilize the services of their lawyers for all necessary advice so that they can make informed choices throughout.

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13. Does the mediator draft the parties’ agreement if we settle?
We will draft memoranda of understanding after each meeting, summarizing what the mediator felt was accomplished. These are not binding settlements however, as both parties need to have legal advice before finalizing agreements. If counsel attend the mediation, counsel may with to have an agreement or minutes of settlement prepared at the time; and the parties can sign a binding agreement with the advice of their lawyers.

In family mediation, we may, if requested by parties and their lawyers, prepare a draft that mirrors the likely terms of the final agreement, using a modified precedent that has been published by the Law Society of Upper Canada. Such drafts are prepared only for the purpose of legal review and finalization. More often, the lawyers draft the agreement and they attend the last mediation session with their clients for the purpose of finalizing details and signing the agreement.
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14. 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, such as the Ontario Association of Family Mediation, the Alternative Dispute Resolution Institute of Ontario or Family Mediation Canada. Mediators who are conducting mediations under the provisions of the Ontario Mandatory Mediation Program are governed by specific code of conduct.

Mediators are not required by law to carry mediation liability insurance although many 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 Mediation Standards of Practice
  • Ontario Association of Family Mediators Abuse Policy
  • Ontario Mandatory Mediation Program Code of Conduct

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