Mediation is different from the adversarial process. While there are elements of both competition and collaboration in all mediations, mediation is essentially a collaborative process. Collaboration is required in order to give the participants the best chance at reaching a reasonable settlement. It is an opportunity for the parties to engage in a real alternative to court proceedings which are often lengthly and disruptive.

Is the matter suitable for mediation?
Will the mediation be a success?
How do I prepare for a mediation?
What if I break down during the mediation?
How quickly can the matter be mediated?
What is motivating the other side?
How is the mediation concluded?
Mediation Protocol

Is the matter suitable for mediation?

This depends on whether the parties are:

  • Motivated to mediate;
  • Able to be responsible for themselves;
  • Able to deal directly with each other;
  • Prepared to deal with the conflict at hand; and
  • Receptive to working towards mutually acceptable decisions.
Will the mediation be a success?

Again, this depends. The success of the mediation will depend on a number of factors, including the following:

  • Whether or not there will be an ongoing relationship;
  • The needs and wants of the parties that would allow for the creation of acceptable solutions;
  • External factors that would prevent arriving at a settlement, such as legal and emotional costs, time, unpredictable outcomes (which often occur when matters proceed to trial) and the need for privacy;
  • The level of hostility between the parties and whether or not it would prevent them from coming to an agreement;
  • A past history of cooperation or joint problem solving between the parties; and
  • Whether or not the parties are more interested in change for the future than in punishment, revenge or being publicly vindicated.
How do I prepare for a mediation?

  1. Map out a realistic range of settlement possibilities;
  2. Come with an optimistic attitude regarding the settlement process, and be prepared to have an open mind, as discussions unfold, and your understanding of the other party’s position increases;
  3. Where financial information is relevant, statements, bank balances, appraisals, etc. should be readily available.
What if I break down during the mediation?

Do not be afraid of emotion. The expression of emotion is healthy and often necessary before options and concrete settlement proposals can be seriously considered. Mediation is not about working around conflict, but about working through conflict. Be prepared for emotion.

How quickly can the matter be mediated?

You will be given the opportunity to express your needs, interests and concerns in a respectful manner. Likewise, you will hear those of the other party. Once this has been accomplished, the mediation process is on the road to a successful resolution.

What is motivating the other side?

Do not assume that you know what is driving the other party. It is not always about money. Other factors may involve:

  • The need to save face;
  • The need to achieve closure on a difficult period of one's life;
  • The need to understand what went wrong and why;
  • The need for direct access to voice a complaint; and
  • The need for an apology or an expression of empathy.
How is the mediation concluded?

If the matter is resolved, minutes of settlement are signed. If the matter is not resolved, the parties may consider scheduling another mediation session. Mediation is a process, not an event. It need not be a one time "make it or break it" session. The first mediation session provides a wonderful opportunity to settle the case as everyone is well prepared, focused, and perhaps most importantly, all in the same room. If the meeting produces no final resolution, another meeting can be scheduled. Build on the progress made in the first session and remember that the cost of another mediation session is generally modest compared to the cost of not settling, or moving on with litigation.

Mediation Protocol

Role and Expectations of the Mediator:

  • The mediator expects the parties to participate, along with their solicitors if in attendance, both in the opening statements and in the ongoing discussions throughout the mediation;
  • The mediator will act as an impartial, neutral facilitator, with no decision-making power, in order to help the parties reach a mutually beneficial agreement;
  • The mediator may meet with solicitors prior to the commencement of the mediation or in a caucus as the mediation progresses, if all solicitors and clients so wish.
Role of the Parties:

  • From the onset, to take an active role in discussing their needs and interests;
  • To offer their perspectives on the dispute;
  • To be open and attentive to hearing and learning about the needs and interests of the other side; yelling and swearing does not advance one's case;
  • To be open and attentive to learning about the strengths and weaknesses of the legal positions of both sides of the dispute;
  • To engage in a good faith effort to resolve the dispute while ensuring that the agreement reasonably meets their own needs and interests;
  • If children are involved, prior year's income tax returns will be necessary for purposes of establishing child support payments; and
  • To accurately fill out financial statements, where applicable.
Role of Solicitors/Representatives:

  • To be creative, clever and positive;
  • To advise and assist clients throughout;
  • To discuss, with the other solicitors and their respective clients, legal, evidentiary or practical matters suggested by the mediator or requested by their clients;
  • To encourage their clients to participate directly in the proceedings and to provide their perspective on the dispute;
  • To mutually engage with their clients and the other side in a problem solving approach to resolve the issues in dispute;
  • To provide legal advice;
  • To draft settlement documents; and
  • To accord the mediation process the same degree of professional responsibility and courtesy as they do the court process.
| Mediation Agreement |

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