What is Mediation? 
Mediation is defined as “assisted negotiation”, or simply, an “assisted conversation”, where a neutral third party – a Mediator – facilitates discussion and problem-solving between parties in conflict toward a mutually satisfactory agreement.  It is an informal process compared to litigating in Court, completely voluntary, private and confidential.

The private facilitative process provides a safe and creative environment for speaking, listening and decision-making.  It helps to define issues and interests, to compare perspectives, to identify obstacles to communication or agreement, to generate options for settlement, and craft agreements and plans. And throughout the process, parties are developing new skill in communicating and negotiating.     [See also Mediation Values]

Role of the Mediator
The mediator is a neutral third party who helps parties in conflict discover and navigate differing interests and perceptions, and guides a structured process toward mutually satisfying agreements or plans.  The mediator does not decide what is “fair” or “right,” does not assess merits or give legal opinions.  Mediation leaves the decision-making power to the parties.  The mediator may, however, share accepted standards to measure options against, encourage creativity in generating options, and may encourage flexibility or reflection during the mediation process.

The mediation process can be closed or open. We engage in closed mediation, which means that anything that is said in mediation sessions is held confidential by all parties and their lawyers, and as such, is inadmissible in any court proceeding, should the parties proceed to court on undecided issues.  And, as the Mediator is a neutral party, they also cannot be called upon to testify in court, should the parties proceed to court after the mediation.  A Memorandum of Understanding will be written on all issues agreed upon and distributed only to the parties and their lawyers, however no report shall be written to the Court or any outside party on any undecided issues.

If however, it is revealed by any party that they intend to hurt themselves or another, or that harm has been perpetrated by any party, Mediator Confidentiality is suspended and the Mediator has a responsibility to report any such threat or harm to the appropriate agency.

If all parties prefer, or if specifically requested by the Court, we will engage in an open mediation process. In this case a report will cover all issues decided and undecided, and will be shared with the requesting court or agency.  If this is a choice of the parties, they should consult with their Counsel before deciding on this option.

Good Faith & Status Quo
Mediation depends on good information and good intentions.  Full disclosure of facts will be requested as preparation for Mediation, the same as would be expected in a Court process.  As well, to ensure good faith in negotiations, the mediator will require agreement between parties before the first session, to abstain from litigation while the mediation process is going on.  A contract covering these principles, will be signed by the parties at the first session.

When we say ‘good intentions’, we don’t mean to rule out the fact that some may come to the table with a measure of skepticism.  Conflict often involves a loss of faith and trust in another, or sometimes in our own abilities to negotiate for ourselves.   We accept this as a starting point… and go forward from there.  All that’s needed is a willingness to engage, no matter how tentative.

The Process
Parties may contact the Mediator together or one at a time, to determine their interest in engaging in the mediation process.

Individual meetings are then set with the Mediator, each party sharing their interests and perspectives on the conflict and engaging in an intake interview by the Mediator.  If the Mediator feels that Mediation would be a viable option for resolution of the conflict, they will call the parties to a first joint meeting.  If the Mediator does not feel that Mediation is appropriate, they will advise parties as to other options for their dispute.

At the first joint session, the parties will contract with each other and the Mediator, set an agenda of issues, and determine what information is necessary to have at hand for the discussion.  The Mediation may begin at this first session and, if there is more than one issue, subsequent meetings will be set according to the priorities of the agenda. Each party will speak about the issue and its meaning and import for them; each party will listen to the other; and both parties will engage in problem-solving, decision-making and planning, with the assistance of the Mediator.

Throughout the mediation process, the Mediator may call for private meetings with each individual party or their counsel. This allows each side to further clarify and evolve their interests and goals.  It also gives the Mediator an opportunity to help clients reflect on their particular position and assess any adjustments they may wish to make.

At the end of the Mediation, when agreement has been reached, the Mediator will draw up a Memorandum of Understanding, covering the decisions made by the parties.  This is a record only.  It is not a legal document and will not be signed by the parties.  The parties are encouraged to seek independent legal advice (ILA) before having the contents of the MOU drafted into a legal Agreement to be signed by both parties and witnesses, or, to enter the Agreement as a Consent Order with the appropriate Court of Justice, again jointly signed by the parties.

Mediation Clause
We recommend that every Agreement include a Mediation clause which states that parties will consider Mediation as the first remedy of choice, if changes in circumstance or problems arising in the future require that the agreement be revisited and revised.  This keeps parties out of Court and presents opportunities to grow communication and negotiation skills as interests change and evolve.