FAQ - What is Mediation?

What is mediation?

Mediation is a non-binding form of Alternative Dispute Resolution, which facilitates a resolution between two or more parties. It is a structured and interactive process, whereby an impartial or neutral third party known as “The Mediator”, assists disputing parties to resolve a conflict through a negotiated agreement. Unlike going to trial or arbitration, where the judge or an arbitrator makes the decision for you, mediation allows you to control a solution that best suits your needs.

Afsana will work with all the parties in conflict and help them to negotiate a better alternative to attending a trial or other contentious forms of resolution.

Mediation can provide certainty depending on whether the matter has settled. If a settlement is agreed upon by all the parties, the terms of settlement become binding in a court of law.

Discussions, information, and evidence created during a mediation, are wholly confidential and cannot be used as evidence in a court of law. The mediator is also under no obligation to provide evidence as a witness. Therefore, mediation is a confidential process.

How do you decide whether or not to mediate?

In most cases, mediation is a voluntary process. There is no obligation to mediate or accept offers of settlement during mediation. In some instances in Ontario, mediation in civil litigation and estate matters is mandatory depending on your location and the value of the case. It is mandated under rules 24.1 and 75.1 of the Rules of Civil Procedure, in Ottawa, Toronto and Windsor.

Usually, your lawyer will advise you on whether or not you should mediate or if you have an obligation to attend mediation. There are lots of reasons to consider mediation. Here are three considerations you should make:

1.  Evaluate how strong your case is against the other party and the reasons why;

2. Evaluate the cost of mediation against the cost of trial and the added risk of losing at trial and costs being awarded to the other party; and

3. The impact a continuing claim would have on you emotionally.

Most people like to opt for mediation, as it allows them to have control over the outcome of the dispute, rather than a judge or arbitrator deciding the outcome on your behalf.

How should you prepare for a mediation?

If you are represented by a lawyer, they will usually prepare a ‘mediation brief’ and send it to the mediator 7 days before the mediation date. The lawyer will also talk to you about the mediation process and tell you what you should expect.

It is advisable that you look at the pros and cons of your case and the associated risks. It is also a good idea to have in mind what you are hoping to achieve at the mediation and any strategies that could help during the negotiation stage of the mediation.

If you are not represented by a lawyer and you have questions about the mediation process please contact Afsana

What will happen during the mediation?

There are many steps that are taken during the mediation process, before successfully reaching a settlement. Below, Afsana tells you her best practices.

Opening remarks. During my mediation, I will seat the parties to my left and to my right. I will begin with some opening remarks, set some ground rules, and an agenda for the duration of the mediation. I will ensure you fully understand the mediation process, and are comfortable to begin.

Opening statements. Each party will have an opportunity to tell me the facts of their case and the reason(s) for the dispute. This stage is better known as the “opening statements”. I will listen to you and the other party or parties and make sure I have the correct facts about the case, whilst noting down the areas that are of particular concern to you. This stage will also give you an opportunity to outline what you are hoping to achieve from the mediation. Opening statements are optional and you can opt out if you would like. However, from experience, I have found that this stage helps you to feel comfortable and more involved in the process, whilst also giving you the opportunity to have your say.

Issues and Interests. Now that I know more about your case, I will determine the matters upon which both parties agree (the common grounds). This will help me work out what the issues are and what interest each party has to resolve. These discussions can help you to identify a reasonable settlement.

Options. During this stage, I will collaborate with both sides to brainstorm some options each party considers fit for a fair resolution. I encourage all the parties to actively take part in this process and negotiate some possible resolutions. This stage can be carried out in the presence of all the parties in a joint session or separately in caucus. If you choose to caucus, I will meet with each party in private rooms to discuss the matters or offers you would like to put forward to the other side.  You may or may not wish to accept the offer/s, however, it may provide ideas and solutions on which to build a counter-offer. During each stage of this process, I will help you to negotiate a settlement that is right for you. The more open you remain to making and receiving offers, the better your chances are of reaching a settlement.

Settlement and Closure. There may be a few settlement options on the table for the parties to consider. You may collaborate with each party to work out the terms and details that suit you best. Alternatively, you may have just one offer that you are happy with. Either way, you have now reached the stage where you are happy with the options or offers that have been presented to you and vice versa. Once a settlement is reached, you will have an opportunity to draft, revise and agree on the terms of the settlement (or minutes of settlement) and decide the best way to reach the terms.

How should you decide whether or not to accept an offer?

Your lawyer can help you decide whether the offer is a fair resolution to your case. You will also have an opportunity to make a counter-offer if the situation is right. Afsana will help you through this stage and ensure any decision you make is the correct one for you.

Ultimately, the decision to accept an offer is yours entirely. You, as the disputant, must take time to consider if the offer on the table would satisfy you.

One way to help you decide whether or not an offer should be accepted is by preparing a BATNA (Best Alternative to a Negotiated Agreement ). What is your best alternative, if you do not reach an agreement? Your lawyer will help you prepare for this. The question you should always ask yourself is: “Is the offer on the table better than my BATNA?” If the answer is YES, you should think about accepting the offer.

How long will it take to mediate your case?

The length of the mediation depends on the complexity of your case. Your lawyer will have lots of experience with mediation and will usually be able to tell you how long the mediation is likely to last.

What if settlement is not reached?

There may be times when parties are not able to reach an agreement, because ultimately a better option to the settlement is available, or simply because the right offer did not come along. Mediation is still considered successful even if you did not reach the resolution you hoped for.  I will help you through the process and provide a reasoned evaluation as to why a settlement was not reached. You may opt to have a second mediation after a cooling-off period. This second round of mediation can be successful for the simple reason that both parties understand each other’s positions better and have had time to think.

How expensive is it to mediate?

The cost of mediation can depend upon a number of factors, including, but not limited to; length, complexity and experience of the mediator. You and your appointed representative should choose a mediator that fits you best. Keep in mind that against the cost of continuing your dispute to trial, mediation could be more cost effective.

Afsana provides competitive rates for her mediation as well as bringing a wealth of experience to the table. You may even qualify for free mediation. Please click here to find out more.