Mediation

Fact Sheet

Mediation is a voluntary and confidential process in which the mediator, an impartial third party, facilitates open and respectful communication between parties.

Mediation is not a contradictory process and is not meant to determine who is right or who is wrong.

In a mediation process, the mediator assists parties in reaching a solution but does not make decisions. Therefore, only parties can agree on a settlement.

Mediation allows parties to better understand and express their respective needs and interests, to share their concerns and to define the issues in dispute more clearly. As opposed to a formal hearing where a decision is imposed to parties, in a mediation process, parties are to find themselves options that could lead to mutually acceptable solutions.

Usually, parties that voluntarily accept to participate in a mediation process are asked to assist to mediation sessions. To maximize the potential for positive outcomes, it is recommended that the persons having the necessary authorities to settle the dispute also attend those meetings. Occasionally, other interested parties or experts might also be requested to participate.

The nature of the conflict, the personalities of the people involved and the intensity of emotions are some of the factors that may influence the mediator’s approach.

Mediation allows to:

• encourage sharing of information;
• establish or re-establish communication between parties;
• establish or re-establish personal and/or professional relations between parties;
• identify and narrow the issues;
• clarify misunderstandings and perceptions;
• help parties understand each other’s views, needs, interests and realities;
• encourage positive and productive exchanges between parties and shift the focus from the past to the future;
• encourage flexibility and creativity;
• help parties to realistically evaluate alternatives;
• in certain cases, resolve other issues attached to the main problem; and
• reach an agreement in a shorter timeframe than in a formal hearing and at lower costs.

The Mediation Process

1. Pre-Mediation: Orientation
2. Introduction: Setting the stage
3. Issues: What to solve
4. Interests: What is important and why (needs, desires, concerns)
5. Options: Creative Solutions
6. Agreement: Realistic, understood, operational

The role of each party in mediation

Before mediation

• voluntarily accept to participate in a mediation process with openness and respect;
• think about the key issues as you see them and as the other party may see them;
• determine the specific interests (concerns, hopes, fears, desires, expectations, justifications...) and needs of each party as well as the shared interests and needs of all parties;
• identify possible solutions that might satisfy your interests as well as the interests of the other party;
• prepare an opening statement on the reasons supporting the dispute as well as the reasons to have accepted to participate in a mediation process;
• consider your alternatives should mediation not result in an settlement;
• try to understand and to respect the other party’s perspective;
• ensure that persons having the necessary authorities to settle the dispute attend all mediation sessions or are easily and readily accessible by telephone to approve any agreement.

During mediation

• review and sign the consent to mediate;
• participate in good faith;
• communicate in an open and honest manner;
• adhere to the ground rules agreed upon by the mediator and the parties;
• actively contribute in finding options;
• if in doubt, ask questions;
• get involved in the attempt to resolve the dispute;
• draft or help your representative draft the Terms of Settlement and sign it;
• advise the mediator if you do not agree and/or if you are not comfortable with the proposed settlement and/or if your feel pressure to accept the terms and conditions of the said settlement;
• ensure that every clause related to occupational health and security in a possible settlement, is in compliance with the provisions of the Canada Labour Code, Part II and its Regulations.

After the mediation

• implement the terms of the settlement or follow-up to ensure that the terms of the settlement have been executed and
• ensure that the terms of the settlement were fully complied with by the due dates.

The role of the mediator

The role of the mediator is to:

• be impartial;
• deal respectfully with all participants;
• after being appointed to the file, contact each party and/or their representatives to initiate the proceedings, explain the mediation process an its voluntary aspect, explain the roles of all parties, ask questions in order to ascertain the issues and interests underlying the respective positions, explain why the persons having the necessary authorities to settle the dispute should attend all mediation sessions;
• protect the confidentiality of the whole mediation process, subject to any applicable law.
• during the pre-mediation, where applicable :
  • re-explain the mediation process;
  • review the roles of parties and/or their representatives;
  • explain the forms and
  • answer any questions.
• prior to starting the mediation :
  • ensure that the consent to mediate has been signed by all participants and
  • in consultation with the participants establish the rules of procedures to be followed during the mediation.
• during the mediation :
  • help parties to listen to each other and encourage open and respectful communication;
  • assist parties to focus on the future rather than dwell on the past and encourage discussions on interests rather than positions;
  • help parties to understand the other party’s perspective;
  • assist parties in identifying issues related to the dispute;
  • guide parties to identify their common and specific interests, concerns and needs;
  • support parties in exploring viable options based on objective criteria;
  • support parties in the development of their own solutions and
  • review the settlement intervened between parties to ensure all terms related to occupational health and safety are in compliance with the provisions of the Canada Labour Code, Part II and its Regulations.
• at the conclusion of the mediation :
  • destroy all notes taken during the mediation process at the end of the mediation or at a later date, when a follow up is required;
  • ensure that the notes taken during the mediation process that are not destroyed immediately after the mediation are not placed on the official appeal’s file or in any other file under the control of the Tribunal and
  • advise the Director that a settlement has been reached or not and thereafter file a memorandum of the Tribunal by memo to be placed on in the appeal’s docket that :
    • either, no settlement has been reached and a hearing date is to be scheduled or
    • a settlement has been reached with an execution timeframe, where applicable, requiring a follow-up in the event a notice of withdrawal is not received once the timeframe is over.

The role of the mediator is not to:

• take sides;
• act as a lawyer, a representative or an advocate for either party;
• tell parties what the issues are between them;
• take responsibility for the issues;
• solve the problems;
• make decisions for parties;
• provide his/her own opinions;
• give suggestions;
• discuss the likely outcome should the appeal proceed to a hearing;
• give advice on the legal implications of any settlement reached by parties;
• draft the Terms of Settlement when parties agree to settle the dispute;
• put an end to the appeal’s request;
• divulge the content of the Terms of Settlement to anyone without permission of parties.

The mediator cannot be called as a witness in any subsequent administrative or legal proceeding.

The role of a representative during a mediation process

Before mediation

• outline the advantages and disadvantages of mediation in order that his/her client can make an informed decision to participate in the process;
• analyse the results and the possible consequences following the hearing of an appeal should a settlement not be reached at mediation;
• advise his/her client of the possible delays relative to the process of appeals submitted to the Tribunal;
• encourage his/her client to be fully engaged in the process by participating in good faith with openness and respect;
• assist his/her client in identifying his/her interests and needs as well as the interests and needs of the other party;
• assist his/her client in preparing his/her opening statement pertaining to the issues as well as to the reasons to have accepted to get involved in the mediation process;
• encourage his/her client to consider the other party’s perspective;
• help his/her client reach a settlement in identifying options and looking for solutions that would meet his/her needs and interests;
• help his/her client determine why those results are important to him/her;
• ensure that persons having the necessary authorities to settle the dispute attend all mediation sessions or are easily and readily accessible by telephone to approve any settlement.

During mediation

• assist and support his/her client;
• ensure that the mediation process respects the interests of his/her client;
• help his/her client consider the other party’s perspective and evaluate any new information;
• assist the client in articulating his/her interests and needs and in understanding the needs and interests of the other party;
• work with the client to explore options and propose solutions acceptable to all parties;
• help parties agree on solutions which could be implemented;
• draft the Terms of Settlement with the other party and/or his/her representative for signature of the settlement;
• ensure that every clause related to occupational health and security in a possible settlement, is in compliance with the provisions of the Canada Labour Code, Part II and its Regulations.

After mediation

• if necessary, assist his/her client to implement the Terms of Settlement and
• ensure that all terms have been executed within the stated timeframes.