The Mediation Process

Breface:

Recently I posted an article delineating the key elements of mediation and why the process works to solve disputes. Today I hope to explain the mechanics of mediation - the process itself. My comments apply generally to any mediation but as always your specific circumstances must be considered and may alter the process. I make specific reference to the DRC process and tools. DRC is the Dispute Resolution Centre being a part of the Community Legal Services program at Western Law. The DRC offers free mediations.

I will assume you and your "adversaries" have decided to mediate your dispute, have selected advisors or are going it alone[1], and that you have all agreed on a mediator.[2] What happens next?

Mediation Agreement:

Most Mediators will want the parties and their advisors to begin by reviewing and signing a "mediation agreement". Typically such agreements deal with confidentiality, the mediator’s role, that the discussions are without prejudice, that the authority to settle exits and that the parties have the right to withdraw at any time. The agreement should be read carefully and you should raise anything you do not understand or agree with. If its fee-based session the amounts and who will pay them should be agreed upon as well.[3]

Pre-Mediation Conference:

Next, some mediators use a pre-mediation conference to further assess and clarify what needs to be accomplished in the mediation. This usually only includes the mediator and the parties legal advisors.[4]

Opening Group Session:

On the appointed date the mediation usually begins with a group session. That means all the parties and their advisors meet together in one room. This allows the mediator to introduce themselves, make introductions (usually on a first name basis) and run through the ground rules once again to ensure that the mediation starts on the right foot.

This step may not be an appropriate start for all types of disputes. Some may be too emotional, too stressful or involve an element of undue influence. In these cases, the issues should be discussed upfront with the mediator to ensure things start off well and the process is modified to accommodate these difficulties. This is an area best suited to the pre-mediation conference or a discussion with the mediator in advance of the hearing.

Opening Statements:

Many mediators then call for the parties to make an opening statement. This is not a jury address. It is simply an opportunity to speak directly to the other parties and set out your version of the facts and your desired outcome. The party advancing the dispute is the first to speak. Each party, in turn, gets to respond with their version of events and desired outcome.

Meeting Directly - Face to Face:

The purpose of group sessions and openings is to encourage and facilitate direct negotiations between the parties. It is after all their mediation. More importantly direct negotiation is the most effective means of communication. The repeated passing of messages and offers by the mediator is less effective. 

Communication and comprehension are in a very small way achieved from the words used and far more from our perception of the tone of voice, body gestures and posture, facial expressions, and eye contact.

Mediators Opening:

At some point, either before, but more likely after, the openings, the mediator will give a summary of the key factors that led to the dispute and delineate all the issues that need to be resolved. This is done to ensure that everyone is on the same page going forward. This is invariably done in a positive, non-adversarial tone using neutral words encompassing all sides of the dispute.

Caucas - Meeting Alone with the Mediator:

At this point, the mediator will meet with one of the parties and/or their advisors in another room. This is known as a break-out or caucus. The mediator will do so with each party in turn, the order of doing so being of their choosing. The purpose is to have a one on one, private conversation, with each party. 

What is Confidential?

Remember that the mediator is free to disclose anything said in these meetings with the other parties UNLESS you instruct them that certain information disclosed is to remain confidential.

How Long Does It Take?

The process continues for the length of the mediation. It may contain many break-outs and several group sessions. Offers, solutions, and new ideas etc. will be raised, considered and discussed. The mediator is trying to help the parties reach a consensus. Depending on the agreed tenure of the mediation this can take many hours. Much of that time may be spent alone waiting for the mediator to return.

Mediation Settlement:

If a consensus is reached the mediator will facilitate the creation of a written agreement setting out the terms of the settlement or resolution. This is called a "Mediation Agreement" or "Minutes of Settlement". All parties will get to review the document and its terms and once satisfied will sign the document to signify their agreement.

Sum & Substance:

A lot of time, effort and energy go into mediation. All parties and the mediator are committed to arriving at a resolution and agreement. This leads to a success rate of 80%. Even where there is no agreement, it is rare for mediation to fail completely. Often partial terms of a settlement are achieved. This may be a settlement of one issue or just certain facts being agreed upon which simplifies any further dispute resolution before a court or tribunal.


Information made available on Gestalt Legal in any form is for information purposes only. It is not, and should not, be taken as legal advice. You should not rely on, or take, or fail to take, any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Every legal problem is fact and jurisdiction-specific and should be discussed with your legal or paralegal advisor as soon as possible. If you cannot afford such advice various free legal clinics exist assuming you qualify financially.

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[1] The mediator does not provide legal advice. The Ontario Rules of Professional Conduct suggest that a lawyer/mediator should encourage the parties to seek their own legal advice and representation both before and during the mediation. Equally where an agreement is reached the Rules suggest that the lawyer/mediator should encourage the parties to seek independent legal advice before signing.
[2] Acceptance by the DRC is contingent upon the availability of the student mediators, there being no conflicts with past or current Clinic files and the suitability of the dispute for DRC resolution. The choice of mediators is made by the DRC.[3] The DRC Agreement is available to review by request. The agreement, given the nature of the disputes, can also be conducted in part over the telephone. The Agreement also incorporates the Ontario Apologies Act.
[4] This is not a tool used by the DRC.