What is Mediation?
Pursuing an issue legally can very quickly become costly. If your case proceeds all the way to trial, costs and legal fees will continue to rise. This is why mediation is a very effective and efficient form of alternative dispute resolution. It is also important that you understand the process of mediation so that any potential issues or misunderstandings can be avoided.
What is Mediation?
Mediation is a form of alternative dispute resolution commonly used today. Over 90% of all lawsuits actually settle through mediation before even reaching the trial stage. Mediation allows parties to settle their civil disputes outside of court. In mediation, a neutral third party known as the mediator oversees the meeting. The mediator is present to assist individuals in finding a reasonable solution that works for everyone involved.
Lawyers for one or both parties can also be present during mediation. Mediation is unique because the purpose of it is not to determine the winning and losing parties. It is instead intended to help parties reach solutions that would likely not be available at trial.
What is a Mediator?
A mediator is a neutral third party that is trained to assist in the negotiation and resolution process during the mediation. They are to remain objective during the session and ensure that they do not take the side of either party. Keep in mind a mediator cannot provide you with legal advice and what they say is not to be taken as such.
It is your responsibility to seek independent legal advice from either a lawyer or paralegal regarding your matter. When choosing a mediator, be sure to consider things such as the mediator’s training and experience, their knowledge, their approach to mediation, fees and expenses, and references.
What is the Difference Between Mandatory Mediation and Voluntary Mediation
Under Rule 24.1 of the Rules of Civil Procedure, mediation is mandatory for civil actions that are case-managed and not family related. Keep in mind this rule is applicable in Toronto, Ottawa and Windsor. Case management refers to a system where the court supervises cases and outlines specific timelines for the movement of those cases through the pre-trial and trial process. Mandatory mediation is required for case matters involving trusts, substitute decision-makers, and contested estates.
Voluntary mediation is similar to the process for mandatory mediation. The main difference is that voluntary mediation is just that, voluntary for both parties involved. For example, mediation in a domestic violence matter is always voluntary. This is mainly due to safety concerns for one or both parties involved.
What is the Difference Between Open and Closed Mediation
There are currently two different types of mediation: Open Mediation and Closed Mediation. The parties are able to decide on which of the two they would like to use at the beginning of the process. However, a mediation will be closed by default unless both parties agree to having it open. Open mediation means that your mediation process is not private. Any details regarding what was discussed and documents shared during the session can be shared in court.
In closed mediation, everything that is said or done in the session will remain private and confidential. This means that discussions and documents cannot be shared in court. There are situations where a mediator can share information from a closed mediation. This would be in exceptional circumstances like where there are safety concerns for a child or children.
Mediation Process
Screening
Once a mediator is agreed upon, both parties will separately meet with the mediator. This initial screening allows the mediator to obtain information about you and ensure the session remains safe (i.e. substance abuse issues, mental health issues). This screening also helps to make sure that both parties are in an equal negotiating position. The mediator can engage in the screening process at the beginning and throughout the mediation process to ensure ongoing safety.
Sign an Agreement to Mediate
At this stage, both parties enter into an agreement to mediate. The agreement will outline specific details regarding your session like the issues to be discussed, financial arrangements for mediation like who will be covering the costs, whether the mediation is open or closed, and the schedule for the day. This agreement must be signed before the mediation can begin.
At this point, financial information may also be shared. This is known as financial disclosure. This can include information on: debts, assets, property, and income. By sharing financial information honestly, both parties are given more opportunity to resolve issues that are directly impacted by their finances.
Mediation Session
Once mediation begins, both parties will meet with the mediator to explain their side of the issue(s). During the mediation, the mediator will be present to help both parties reach an agreement. Each party will also have the chance to state what is important to them and ask questions. The mediator will help the parties explore options for settlement and facilitate a healthy discussion. During the mediation, the mediator is also able to meet with each party separately before or during the session.
There is no required time for a mediation session but parties are not required to continue after three hours. If both parties provide consent to continue past three hours, the mediator can proceed with the session. If a settlement agreement is reached, the mediator will put the terms of agreement into a document known as “minutes of settlement” or a “memorandum of understanding”. If a settlement is not reached by the end of the session, the legal matter will continue through the court process.
Fees
When it comes to who pays for the mediation session, all parties share the cost. The mediator is paid directly by the parties for their services. Under Rule 75.1 of the Rules of Civil Procedure, the court has the power to order a different allocation of fees. Mediation can also be provided to individuals at no cost if they have a legal aid certificate or meet the Ministry of the Attorney General’s financial eligibility requirements.
If a mediator is on the Ministry of Attorney General’s Program roster, the maximum fees for 30 minutes of preparation time per party and a session of up to three hours are as follows:
Number of Parties and Maximum Fees
2 — $600 plus GST
3 — $675 plus GST
4 — $750 plus GST
5 or more —$825 plus GST
Mediators not found on the roster will have their own decided upon fees and charges.
Advantages of Mediation
There are many advantages to choosing mediation for both parties involved which include:
· Cost efficient; Typically cheaper than court
· The mediation process is faster and more flexible than the court process
· The session takes place in a more relaxed and private setting compared to court
· Allows parties to reach a resolution that they played an active part in instead of going through the court process and having a Judge decide on the matter
Dealing with a legal matter can be incredibly costly and stressful. If you are open to reaching a resolve with the other party without going through the court process, mediation may be the right option for you (unless already mandatory). Do your research and seek independent legal advice to be sure of your options.
Information retrieved from:
https://www.attorneygeneral.jus.gov.on.ca/english/courts
https://www.legalaid.on.ca/faq/mediation/
