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![]() Dispute Resolution GuideJune 1995 Previous | Table of Contents | Next
MediationDispute Resolution Series Practice Module 2 Produced by the Dispute Resolution Sevices Department of Justice, Canada I. What is Mediation?Simply put, mediation is negotiation between disputing parties, assisted by a neutral. While the mediator is not empowered to impose a settlement, the mediator's presence alters the dynamics of the negotiation and often helps shape the final settlement. The Canadian Bar Association defines mediation as "the intervention into a dispute or negotiation by an acceptable, impartial and neutral third party who has no decision making power, to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute." [1] Successful mediations result in a signed agreement or contract which prescribes the future behaviour of the parties; this is often called a memorandum of understanding. Such an agreement has the force of a contract and, when signed, becomes binding. II. Characteristics of a MediationMediation is: Voluntary: No party is forced to use a mediator, nor are they forced to agree to a particular settlement. Non-Coercive: The mediator does not decide for the parties, but helps them make their own decision. Assisted Negotiation: The mediator's role is to be an impartial third party who helps the parties reach a fair and mutually acceptable settlement. The mediator may provide relationship-building and procedural assistance. Moreover, the mediator may also provide substantive options to the parties. Informal: The proceedings of a mediation are more relaxed and informal than those of a court or an arbitration. There are no prescribed rules of procedure and few rules other than those agreed to by the parties themselves. Confidential: Generally, mediation is described as a confidential process. It is up to the parties to jointly establish any limits. If it is decided that the mediation should be confidential, the parties and the mediator should sign a clause to that effect. Notwithstanding a confidentiality clause, when the federal government is a party, the Access to Information Act and Privacy Act must be examined to determine the extent to which they restrict disclosure and withholding of information. Please refer to the document, "Confidentiality: Access to Information Act and Privacy Act" contained in this Reference Guide. III. How to use MediationA. Objective of a Mediation Conducted properly, mediation can allow all parties involved to move away from legal concepts such as fault and instead, allow for a sharing of people's perceptions and experiences and a determination of each party's actual needs and interests. Such an outcome can often do more to truly resolve the problems or perceived problems which led to the dispute than any formal hearing. During a mediation, both the parties and the mediator have certain responsibilities. The parties must attend, as requested, all mediation sessions and participate in the process in good faith. The mediator should remain dispassionate and avoid becoming partial to one party or view. Further, if expressly agreed, all statements and disclosures made and information and documents provided to the mediator are confidential, subject to application of the Access to Information Act and Privacy Act. B. Preparing for a Mediation
C. Steps of a Mediation Although the actual mediation process may vary depending on the degree to which positions have hardened, the personalities of the people involved and the complexity of the issues, at root, all successful mediations involve a series of five mandatory tasks:
These tasks can be expanded into twelve basic steps [4] -- all of which should be realized for a successful mediation to be concluded: Stage 1: Initial Contacts with the Disputing Parties
Stage 2: Selecting a Strategy to Guide Mediation
Stage 3: Collecting and Analyzing Background Information
Stage 4: Designing a Detailed Plan for Mediation
Stage 5: Building Trust and Cooperation
Stage 6: Beginning the Mediation Session
Stage 7: Defining Issues and Setting an Agenda
Stage 8: Uncovering Hidden Interests of the Disputing Parties
Stage 9: Generating Options for Settlement
Stage 10: Assessing Options for Settlement
Stage 11: Final Bargaining [5] - Bring the parties' interests together
Stage 12: Achieving Formal Settlement
D. What is the Role of a Mediator? The role of the mediator varies depending on the personalities of the people involved, mandate given to the mediator by the parties, and the degree of emotions present at the mediation. This results in a spectrum ranging from a mediator who is completely neutral and value-free; to a mediator who takes a more active role in shaping the eventual outcome. The latter borders on mediator as advisor. Regardless of what techniques are used by the mediator to assist the parties in reaching a solution, the mediator is not empowered to render a decision. In various situations, the mediator may attempt to:
E. What is the Role of Counsel in a Mediation? Counsel can play as active a role in a mediation as their client is willing to grant them. It must be determined by the disputing parties at the outset of the mediation whether counsel are present at the mediation session and whether they will be permitted to participate actively. In general, counsel can and should act as legal advisors to their clients, both during a mediation and at the completion of the process. Counsel can and should review a proposed agreement to determine if it serves the client's interests. The presence of counsel during a mediation can help defuse instances of power imbalance. In certain cases, where emotions are exceptionally strong, counsel may represent their clients during a mediation session. Such representation places a considerable ethical and professional obligation on the counsel, who must communicate with their clients, understand their perspective, advocate on their behalf and ensure that the mediation process is addressing their needs. Regardless, counsel should instruct their clients about how best to present their point of view. Appropriate body language can be important. For instance, a strong, yet non-antagonistic presence includes such aspects as: facing the person who is speaking; maintaining a comfortable level of eye contact; leaning forward to listen; keeping the voice level; maintaining an open and a relaxed posture -- hands open, and keeping a distance from the other disputant. Counsel should also gauge the reactions of their clients and either suggest breaks when appropriate or, during a break in the mediation, discuss their observations with the client. Counsel are in an excellent position to advise their clients as to their perception of how a mediation is progressing. Counsel can also play a role in defusing a client's anger by ensuring face is saved and by normalizing the feelings if not the behaviour. Further, counsel can remind their clients, if the mediation has reached an impasse, that an impasse does not mean that the mediation is hopeless, but merely that a compromise solution may need to be considered for that particular issue. F. Dealing with a Power Imbalance and Communication Difficulties Between Parties The mediator has responsibility to ensure that any possible power imbalance or difficulty communicating does not compromise the mediation. In addition to using counsel as representatives, as outlined in section III(E), two other effective methods for reducing an imbalance of power and communication problems are caucusing and co-mediation. Caucusing can be used when an impasse occurs during the mediation which threatens the possibility of a resolution. The mediator holds separate meetings with each disputing party to deal better with the cause of communication problems between the parties and to make suggestions regarding how it can be overcome. Co-mediation is potentially a very powerful tool for addressing balance of power issues. This variant of mediation requires two or more mediators to be equally involved in the process. The rationale for this is to allow those parties which perceive themselves as weaker, to feel more comfortable with the mediation process. For example, co-mediators representing both genders can help defuse the perception of a power imbalance in harassment cases. IV. Concerns about Mediation
V. Advantages of Mediation
VI. Disadvantages of Mediation
Appendix A: Checklist for mediation1. Have the parties agreed to attempt mediation? 2. Are all directly interested parties (to the degree possible) at the table? 3. What additional people will be present at the mediation (ie lawyers, senior executives, etc.)? 4. Should the mediator be empowered to bring other people into the process if he/she feels that their presence would enhance the mediation? 5. Are the parties at the table represented by people with enough authority to agree to a final resolution? 6. Have you identified the issues to be mediated? 7. Has a process to select a mediator been selected? 8. Is there a mechanism for selection if the parties can't agree on a mediator? 9. Does the mediator need to be bilingual? 10. Has a mediation agreement been entered into which includes:
11. Has the date and time of the mediation been determined? 12. Has a neutral location been chosen? 13. Have limits been set on how long the mediated sessions will take? 14. Have any special requirements been met (ie, translation, wheelchair accessibility)? 15. Has a procedure to be followed been established and agreed upon by all parties? 16. If not, does the neutral have the authority to set the procedure? 17. Is there a provision for disclosure? 18. Will the disclosure be in advance or as required by mediator? 19. Will any eventual agreement (Memorandum of Agreement/Intent) be subject to independent legal advice? 20. Is it established who will draft the agreement? 21. Is there an articulated alternative if the mediation is not successful? Appendix B: Sample Mediation AgreementTHIS IS AN AGREEMENT TO MEDIATE made on the day of , 200 B E T W E E N: -and-
1. [Option] The parties have selected ________ as mediator. [Option] The parties agree to mutually select a mediator. If the parties cannot agree on the choice of mediator within _____ days from the date of signing this Agreement, [option a.] then an application will be made to the _______ court to select an mediator. [or option b.] then application will be made to the ______ [insert name of DR organization / centre / professional association ]. 2. The parties agree to mediate the following: i) 3. The mediation shall be held in Ottawa, Ontario at the premises of _______ . 4. All information exchanged during this entire procedure shall be regarded as "without prejudice" communications for the purpose of settlement negotiations and shall be treated as confidential by the parties and their representatives, unless otherwise required by law. However, evidence that is independently admissible or discoverable shall not be rendered inadmissible or non-discoverable by virtue of its use during the mediation. 5. The parties agree to an exchange of all information upon which they intend to rely in any oral or written presentation during the mediation. This exchange shall be complete no later than ten (10) days prior to the date set for the mediation. 6. The parties agree that they will each be responsible for the costs of their own legal counsel and personal travel. Fees and expenses of the mediator and all administrative costs of the mediation, such as the cost of the hearing room, if any, shall be borne equally by the parties. 7. The parties shall jointly select a date for the mediation that is no later than _____ days from the date of this agreement. 8. Either party may terminate this agreement at any time during the mediation. 9. In the event that no agreement is reached, or an agreement is reached on some issues only, the mediator will provide a report stating only that no agreement was reached on some or all of the outstanding issues. 10. Negotiations towards a mediated settlement will be undertaken only by party representatives who have the authority to settle or who have a mutually acceptable and rapid means of obtaining the requisite authorization. 11. The mediator is free to caucus with the parties individually, as he sees fit to improve the chances of a mediated settlement. Any confidential information revealed to the mediator by one party during such caucusing may only be disclosed to the other party(ies) with the former party's express permission. 12. It is agreed that the mediator will neither represent nor testify on behalf of any of the parties in any subsequent proceeding between the parties. It is further agreed that the personal notes and written opinions of the mediator made in relation to this mediation may not be used in any subsequent proceeding between the parties. 13. The parties agree that they will indemnify and save harmless the mediator from all costs, claims, causes of action or proceedings which they have, may now have, or might have in future, respecting and arising from this mediation. 14. During the course of the mediation, the parties agree to take no new steps in any legal action between them which concerns the same matter as is the subject of this mediation. DATED at Ottawa this day of , 200 .
WITNESS TO:
WITNESS TO:
______________________________ [<-] 1. Canadian Bar Association, Task Force Report on ADR in Canada, 1989, 15. [<-] 2. Please refer to section III(F) Dealing with a Power Imbalance and Communication Difficulties between Parties for more information about co-mediation. [<-] 3. Leonard L. Riskin and James E. Westbrook, Dispute Resolution and Lawyers (St. Paul, Minn., West Publishing Co., 1987) at 214. [<-] 4. Adapted from C. Moore's The Mediation Process, Jossey-Bass Publishers, 1986. [<-] 5. The parties can reach a final agreement in a variety of ways: - incremental convergence of interests - acceptance of package settlements - development of a consensus formula - establishment of a framework to reach a substantive agreement [<-] 6. These first points are results of active listening: reflecting -- acknowledge and validate feelings and respond with empathetic statements; restating and reframing -- paraphrase parties' statements in order to identify the underlying concerns, needs or fears; and summarizing -- review progress made and to bring together important facts and ideas that have been expressed. Previous | Table of Contents | Next
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