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DISPUTE RESOLUTION REFERENCE GUIDE
Mediation
Dispute Resolution Series
Practice Module 2
Produced by Dispute Prevention and Resolution Services
Department of Justice, Canada
June 1995
Update July 2006
Table of Contents
- What is mediation?
- Characteristics of a mediation
- How to use mediation
- Concerns about mediation
- Advantages of mediation
- Disadvantages of mediation
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 mediation
Mediation 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 mediation
- 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.
- Preparing for a Mediation
- The choice to go to mediation rests with the parties, all of whom must agree to attend.
- The parties must mutually select a mediator, either through referrals or directly.
- The mediation agreement should be drafted, laying out a number of critical items, including, but not limited to:
- the logistics of the mediation
- the cost-sharing arrangement (normally 50/50)
- the mandate of the mediator
- whether the mediation will be confidential or of public record
- how disclosure would operate -- in advance or as required by mediator
- the use of subsequent processes if mediation is unsuccessful
- the possibility of co-mediation[2]
- remuneration for the mediator.
- 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:
- Agreeing to mediate
- Understanding the problem(s)
- Generating options
- Reaching agreement
- Implementing the agreement[3].
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
- Build credibility
- Promote rapport
- Educate the parties about the process
- Determine whether a lawyer needs to be consulted
- Increase commitment to the procedure
- Stage 2: Selecting a Strategy to Guide Mediation
- Assist the parties to evaluate various methods of conflict resolution
- Assist the parties to select an approach
- Stage 3: Collecting and Analyzing Background Information
- Gather and verify accurate data about the personalities, contest and substance of a dispute
- Stage 4: Designing a Detailed Plan for Mediation
- Identify strategies that will enable the parties to move towards agreement
- Stage 5: Building Trust and Cooperation
- Prepare parties to deal with difficult substantive issues
- Handle strong emotions
- Identify perceptions and minimize effects of stereotypes
- Build recognition of the legitimacy of the parties and issues
- Clarify communications
- Stage 6: Beginning the Mediation Session
- Open communication and negotiation between the parties
- Establish an open and positive tone
- Establish ground rules and behavioral guidelines
- Assist the parties in constructively venting emotions
- Stage 7: Defining Issues and Setting an Agenda
- Identify broad topic areas of concern to the parties
- Obtain agreement on the issues to be discussed
- Determine the sequence of handling the issues
- Stage 8: Uncovering Hidden Interests of the Disputing Parties
- Identify the substantive and procedural interests of the parties
- Educate the parties about each other's interests and needs
- Stage 9: Generating Options for Settlement
- Develop an awareness among the parties of the need for options
- Assist in lowering parties' commitment to positions or sole alternatives
- Generate options through brainstorming and dialogue
- Stage 10: Assessing Options for Settlement
- Review the interests of the parties
- Assess how interests can be met through various options
- Assess the costs and benefits of each option
- Stage 11: Final Bargaining[5]
- Bring the parties' interests together
- Generate will to compromise
- Create an agreement or Memorandum of Understanding
- Stage 12: Achieving Formal Settlement
- Identify procedural steps to operationalize the agreement
- Establish an evaluation and monitoring procedure
- Formalize the settlement and create an enforcement mechanism.
- 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:
- Encourage exchanges of information
- Help the parties understand each other's views
- Let the parties know that their concerns are understood
- Promote a productive level of emotional expression
- Lay out the differences in perceptions and interests[6]
- Identify and narrow issues
- Help parties realistically evaluate alternatives to settlement
- Suggest that the parties take breaks when negotiations reach an impasse
- Encourage flexibility and creativity
- Shift the focus from past to future
- Shift the focus from one of blame to a creative exchange between the parties
- Hold caucuses with each disputant if there is deadlock or a problem
- Propose solutions that meet the fundamental interests of all parties.
- 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.
- 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.
- Objective of a Mediation
IV. Concerns about mediation
- Some people believe that mediation should be mandatory, while others believe that to do so would introduce a coercive element which is counter-productive and contrary to the consensual spirit of mediation.
- As in many other processes, there is concern about accountability and authority to settle. The government is such a large entity that the question of authority to bind the government to a settlement agreement must be addressed at the outset of the process.
- A follow-up concern, is that government might use its very structure (with so many levels of checks and authority) to avoid making a final decision -- thus lengthening the mediation process and placing a mediated solution at risk.
- Although most mediations require that the disputing parties bear the costs of mediation equally, in some instances government has paid more than an equal share. However, this raises a concern that, by so doing, the party which is paying less would be less committed to the mediation process. The Treasury Board Contracting Policy expressly states that the costs of mediation should be shared equally by the parties.
V. Advantages of mediation
- Mediation is particularly useful when the disputing parties need or desire to maintain an ongoing relationship. The consensual process in mediation allows parties to avoid the adversarial elements of litigation which often make it impossible to continue a productive relationship after the settlement.
- Mediation is a creative approach to dispute resolution which is not governed by strict rules of procedure. This allows the parties to design a process which suits their needs and encourages a consensual, rather than an adversarial approach.
- The presence of a mediator allows disputants to explore settlement options openly thereby allowing the mediator to become privy to both the interests and positions of the parties.
- Mediation is particularly advantageous in complex cases which involve numerous issues. Because of the flexibility of the process, the mediator can suggest compromise settlements on different issues, thus allowing for various settlement options which are not limited to legal remedies.
- Since mediations are almost invariably private, subject to the application of the Access to Information Act and Privacy Act, the process is appropriate if confidentiality is considered necessary.
- In general, a mediated settlement can be reached far quicker than a litigated one; accordingly, if the time to settle is short and prospects for settlement are reasonable, mediation can be the more appropriate process. Furthermore, the final outcome will likely meet both parties' needs and interests better because they will be the ones who define the terms of the final agreement.
- Similarly, due to the speed and informality of a mediation, the costs are generally considerably less than litigation. This is of importance both to corporate parties who wish to keep costs down and to parties who otherwise might not be able to afford the cost of the court process.
- The presence of the third-party neutral allows for a controlled dialogue which is useful if previous negotiations have broken down or if the issue being mediated sparks strong emotions.
- It is a general rule that the costs of mediation will be borne equally by all parties. Therefore, both parties have an equal stake in the outcome and a sense of ownership.
VI. Disadvantages of mediation
- Since parties to a mediation meet face to face, there is concern, particularly in cases involving harassment, that there might be a power imbalance between the parties. For example, if a female employee felt she had been harassed by a male superior, she might not be able to confront him as a person with an equal voice at the mediation sessions. In such a case, strategies to mitigate the power imbalance may be used.
- Due to its private, non-adjudicative nature, mediation cannot produce legal precedents.
- A strong-willed mediator can exercise too much control over the mediation and affect the eventual resolution.
- The lack of a binding third-party decision, might encourage a defendant to agree to a mediation, but not fully cooperate, in an attempt to delay a resolution of the dispute.
Appendix A: Checklist for mediation
- Have the parties agreed to attempt mediation?
- Are all directly interested parties (to the degree possible) at the table?
- What additional people will be present at the mediation (ie lawyers, senior executives, etc.)?
- Should the mediator be empowered to bring other people into the process if he/she feels that their presence would enhance the mediation?
- Are the parties at the table represented by people with enough authority to agree to a final resolution?
- Have you identified the issues to be mediated?
- Has a process to select a mediator been selected?
- Is there a mechanism for selection if the parties can't agree on a mediator?
- Does the mediator need to be bilingual?
- Has a mediation agreement been entered into which includes:
- the mediator's mandate?
- a provision for a written agreement if the dispute is resolved?
- the confidentiality of the process?
- remuneration for the mediator?
- acknowledgement of responsibility of the mediator?
- acknowledgement of responsibility of the parties?
- acknowledgement that all costs (ie. location rental, mediator's fee, witnesses fee, etc.) will be borne equally between the parties?
- Has the date and time of the mediation been determined?
- Has a neutral location been chosen?
- Have limits been set on how long the mediated sessions will take?
- Have any special requirements been met (ie, translation, wheelchair accessibility)?
- Has a procedure to be followed been established and agreed upon by all parties?
- If not, does the neutral have the authority to set the procedure?
- Is there a provision for disclosure?
- Will the disclosure be in advance or as required by mediator?
- Will any eventual agreement (Memorandum of Agreement/Intent) be subject to independent legal advice?
- Is it established who will draft the agreement?
- Is there an articulated alternative if the mediation is not successful?
Appendix B: Sample mediation agreement
See DR Clauses: Sample Mediation Agreement
