What is Mediation?

Kathryn G. Sutherland, P. Eng.

Mediation is a process where people involved in a dispute meet with an independent, neutral third party to discuss the problem, each parties' interests, and possible solutions. Mediation allows parties the opportunity to participate and to jointly craft a solution that is tailored their individual circumstances. No one imposes a decision or makes any determination as to "right" or "wrong". Each party has the opportunity to express their concerns, tell their stories and attempt to negotiate an agreement.

Mediation is more flexible, expeditious and cost-effective than litigation. Mediation is common-place in all types of disputes, including family, business, construction, employment & workplace and in simple collection matters. Many contracts and agreements now include a clause that require the parties to mediate a dispute prior to resorting to litigation. People are now seeing that litigation should be used only as a last resort, used if and when all reasonable, less expensive, more expeditious avenues are exhausted.

Although each mediation depends on the parties to a great extent, there are some fairly standard steps that each mediation will take. Parties should ensure that they understand the process and know what to expect before they attend the mediation. Chances of a successful mediation, of resolving the dispute or at least some of the issues between the parties, are enhanced by taking the time to prepare for mediation. Knowing some tips for effective mediation will also enhance the effectiveness of the mediation.

The Role of the Mediator

The mediator facilitates a discussion between the parties to enable them to find a solution to the dispute. The mediator is a is a neutral third party; and is not a decision maker in the process. The mediator's role is to ensure that everyone has the opportunity to express themselves, their concerns, and their interests.

The mediator cannot impose a settlement or decide the case; the mediator is not a judge or an arbitrator. The mediator's role is to help the parties to find a solution to their dispute by communicating with each other in a constructive way, allowing an agreement. Agreements entered into at mediation are more likely to be respected as the parties have entered into it willingly, rather than having it imposed upon them.

Court-Connected Mediation

The court system now recognizes the effectiveness of mediation, and Ottawa, Toronto and Windsor now require that a mediation be held early-on in most civil court actions through the Mandatory Mediation Program. The parties are required to meet face-to-face to discuss possible resolution early on in the litigation process.