The Basics of Mediation: What is It and What does it Involve?
In May 2017 I completed LESA’s Mediation in Divorce and Family Law Conflict course and am now able to offer mediation services to the community. As a lawyer, the concept of mediation is something I am very familiar with; in fact, some legislation specifically requires lawyers to discuss this method of resolving disputes with clients prior to commencing litigation. However, it was not until I recently completed my mediation training that I discovered how many people have no idea what mediation is or what it entails.
What is mediation?
Mediation is a form of alternative dispute resolution in which an impartial, neutral third party (the mediator) helps parties reach a negotiated settlement. Put simply, it is a way to resolve disputes outside of the court system. Unlike a judge or arbitrator, a mediator does not impose solutions on the parties involved, but rather, merely facilitates conversation between the participants. Ultimately the decision making rests with the parties themselves.
What are the advantages of mediation vs. the court system?
Typically, mediation is much faster, cheaper and far less adversarial than going to court. Further, parties have comfort in knowing that they retain control of the outcome. Judges and arbitrators can only make the best decisions possible based on the information before them and often do not have an extensive knowledge of the parties’ history, circumstances and needs. Mediation encourages creative problem solving and gives parties the opportunity to explore a range of options to their particular dispute.
In addition, unlike the court system in which every filed document becomes part of the public record (in the sense that any member of the public can search and request copies of any filed court documents), mediation is completely private and confidential. The Agreement to Mediate will often specifically set out that the mediator cannot disclose anything that is discussed during the sessions and that the agreement is “without prejudice”, meaning it cannot be submitted as evidence by the parties later in court.
Is mediation voluntary?
Mediation is completely voluntary and all parties involved must consent to attend the sessions, with one stipulation. Under the current Alberta Rules of Court, parties are required to participate in mediation prior to commencing certain court actions and applications. However, that Rule has currently been suspended due to the lack of adjudicators and court resources available to satisfy this requirement. Nevertheless, parties to a civil dispute in Provincial Court, for example, are often ordered to attend mediation prior to setting their matter down for trial in an effort to encourage settlement.
What happens in a typical mediation session?
At the first meeting, the mediator will begin by reviewing and signing the Agreement to Mediate with participants. The Agreement will typically set out the various “rules” for mediation with respect to communication between the parties and confidentiality, and confirms parties’ commitment to the mediation process.
Following this, the parties will advise the mediator which matters they would like to discuss and potentially resolve. The mediator will then facilitate a discussion between the participants with respect to the same and ensure that each person has an adequate opportunity to explain their needs and concerns. The mediator will assist in creating understanding between the parties and then provide them with an opportunity to generate and evaluate potential solutions to their issues. If parties are able to reach a resolution, the mediator can then draw up a Memorandum of Understanding setting out the terms of the parties’ agreement.
It is of critical importance to understand that a Memorandum of Understanding is NOT legally binding upon the participants. However, it can form the basis of a court order or a settlement agreement drawn up by legal counsel, which can then be relied upon by parties.
What is the role of the mediator?
The mediator is responsible for facilitating open and honest discussion between the parties and assisting them in reaching a resolution. Unlike a lawyer who typically advocates for one client and one party’s position, a mediator has two “clients” and is not concerned about each party’s respective positions, but rather their underlying interests and concerns. The mediator does not provide legal advice as this would nullify the fundamental impartiality that is crucial to the mediation process. Rather, parties are each encouraged to seek independent legal advice throughout the mediation process with respect to their legal rights and responsibilities.
It is also interesting to note that in Alberta mediators are not required to complete any form of legal training, nor is mediation a regulated practice. As a result, anyone can market themselves as a mediator without having received any formal education or training. Given the complex legal issues involved in most disputes, retaining a mediator who also possesses a legal background can be very beneficial to potential clients. Although a mediator cannot provide legal advice, he or she can provide legal information to the participants, as well as caution against proposed solutions that may not be in keeping with the applicable legislation or case law. Ultimately, I would strongly encourage that clients canvass each prospective mediator’s education and experience prior to scheduling an initial meeting.
What is the role of the participants?
In addition to setting the agenda and selecting which topics and issues will be discussed during the mediation session, participants must be committed to effective conversation and the mediation process. This involves not only being open and honest about his or her own fears, needs and concerns, but also, receptive to the other party’s(ies’) needs and concerns. The ultimate goal is to have parties work together to come up with solutions that everyone involved can agree upon and be satisfied with. This usually does not happen unless each party has the opportunity to voice their needs and concerns and feel that those needs and concerns have been acknowledged and considered.
How long will it take?
The length of each specific mediation session will entirely depend on the parties and their particular circumstances. Typically most mediation sessions do not last longer than 2-3 hours. However, if parties are from out of town and are looking to economize their time with the mediator, they may choose to schedule a full day mediation session. Depending on the complexity and number of issues that need to be explored, parties may require multiple mediation sessions taking place over a period of weeks or months.
Can other people attend the mediation session?
Generally only the people involved in the dispute attend mediation. However, it is not uncommon to have lawyers or other professional support individuals, such as parenting experts or social workers, present in order to ensure parties are comfortable and fully informed in making their decisions. Nevertheless, the parties still retain control of all decision making.
However, this can only occur as long as all of the parties to the dispute agree to the additional individuals ahead of time.
What is the Cost of Mediation?
Similar to legal services, mediation sessions are usually based on an hourly rate. The mediator will discuss the fees and payment of the same with participants during the initial interview at the time of signing the Agreement to Mediate.
Should you be interested in further information regarding the mediation process or booking a mediation session, please do not hesitate to contact our office at 780-482-7691.
NOTICE TO READER: The summaries of legal rights and remedies described above are general references to the Alberta laws existing at the date of the publication and may not apply to the reader’s individual circumstances. Also, the laws may change. These legal summaries are not to be relied upon as applicable to your individual circumstances and are subject to a complete review of the facts and applicable laws in every case.