Mediation is the non-adversarial
intervention between conflicting parties to promote
settlement, compromise and understanding. It is an
informal, confidential and structured process to
resolve disputes before they escalate to heightened
hostilities such as litigation. The advantage to
mediation is that the outcome remains in control of
the parties, instead of the courts.
Settlements can often be reached
within a few hours if mediation is used, saving
large amounts of time and money. There are several
mediation approaches used in Canada, including:
Interest-based or “facilitative” mediation
The most commonly used is
facilitative mediation, which focuses on the needs
of all parties and creating agreed-upon criteria for
acceptable solutions using those needs, prior to the
generation of solutions.
Mediation is both time and cost
effective. Other compelling reasons to try mediation
mediation is less adversarial,
mediation preserves business and/or
mediation is easily accessible
mediation is confidential
mediation is affordable
the outcome is within control of the
clients experience high levels of
AAMS we consider mediation to be
the non-adversarial intervention
between conflicting parties to promote settlement,
compromise or understanding. It is an informal, yet
structured dispute resolution process. Mediation is
usually the best alternative to litigation or the
formal filing of grievances. The advantage to
mediation is that the outcome remains in control of
the parties. With litigation the parties lose
control of the outcome, which now rests with the
It is a process whereby a mediator or
trained negotiator assists parties on a
confidential, without prejudice and voluntary basis.
A mediator is often chosen based on experience and
understanding of the area in dispute.
What are the benefits
There are many benefits. By far the most important
is that, in mediation, the parties arrive at their
own agreement acceptable to both sides. There is no
“right” or “wrong”. There is no loser in the
dispute, as neither side loses control. The
mediation process protects the integrity of those in
dispute and enhances the possibility of a workable
By contrast, in a litigated divorce (or other
lawsuit), a judge decides all contested issues
according to standard legal criteria that may not
meet the needs of the parties. In short, once it is
in the courts you no longer have any control of the
outcome. One, or both, parties are going to lose. If
they must continue to associate with each other, it
will likely be confrontational and highly
Mediation is confidential. Mediation is typically
faster and much less expensive than adversarial or
litigated disputes. Agreements reached through
mediation tend to last over time because the people
affected by the decisions are the ones making them.
When parties reach their own agreement, they avoid
unpredictable solutions that often result from the
adversarial process. Mediation does not dwell in the
past, but looks to the future, creating a positive
environment for parties to relate to each other on a
When is the
best time for mediation?
The sooner the
better…ideally before parties incur the expense and
emotional turmoil of litigation.
Mediation is most effective when you and the other
party want to resolve a dispute, but you or the
other party has strong emotional feelings. It may be
that it would be beneficial to maintain some sort of
relationship with the other party, but the current
situation seems to indicate that isn’t likely.
Mediation is helpful if you are uncomfortable
confronting the other party or insecure in your
ability to effectively get your point across.
Parties often think
mediation isn’t necessary until things suddenly
escalate and, before you know it, they are going to
court. If you are already in litigation, it’s still
not too late. Many cases settle out of court or just
before trial. Therefore it's never too late to
of disputes can be mediated?
Just about everything can be mediated and almost any
dispute can avoid being heard in court with certain
exceptions. In most jurisdictions mediation is not
used in cases of criminal activity, class action
suits, where punitive damages are being sought, and
lawsuits involving statutory, judicial or regulatory
case law. Whether it is a matter involving hundreds
of thousands of dollars or a quarrel between
neighbors… whether it is a workplace dispute or a
landlord/tenant issue… whether it is a divorce or a
dispute over a will or estate… mediation can help
you resolve your dispute without resorting to the
time, stress and expense of traditional adversarial
There are different forms of mediation such as
interest-based or facilitative mediation,
transformative mediation, evaluative mediation, and
narrative mediation to name a few. The most commonly
used mediation is facilitative or interest-based
mediation. This mediation focuses on more than just
the stated dispute. Mediation looks at the
underlying interests of the parties.
Mediation identifies and isolates the exact
complaints, irritating obstacles and problems of the
dispute. Once these matters are addressed, the
mediator and the parties can explore options and
possible solutions to address everyone’s needs. Your
mediator can help you arrive at a mutually agreeable
settlement and actually draft a memorandum of
understanding. Mediation often preserves
relationships that would otherwise be lost during
litigation and can help form guidelines to help
prevent future disputes.
mediation legally binding?
Mediation is not legally binding unless both parties
agree to the terms and sign their memorandum of
understanding, at which point it becomes a contract.
If I do
mediation, will I still have to go to court?
disputing parties come to a mutual agreement in
mediation, it generally means there is no need to go
to court. There are some exceptions, such as
divorce, where you need to file the paperwork in
court. If the court accepts your settlement, you
likely won’t have to make many, or perhaps any,
Should one party not honor the terms of the mediated
agreement and the document was not signed, then it
may be necessary to have it enforced through the
courts. Generally, courts uphold properly mediated
agreements, and court action is rare.
How do I start the mediation process?
Both parties must
consent to mediation. Often one party is ready to
mediate before the other, so it may take a little
coordinating prior to starting the process. Once you
and the other parties have agreed to mediation, you
need to agree on a neutral mediator.
If you do not know
any mediators you can obtain a list of neutral,
qualified mediators from the ADR Institute of
Alberta or the ADR Institute of Canada.
Alternatively, feel free to contact the AAMS office
and someone will be glad to speak with you.
How many sessions are
needed to reach an agreement?
That will depend on the complexity of issues, the
level of conflict, and the willingness of both
parties to settle. Some disputes require several
sessions to arrive at an agreement both parties can
live with. However if both parties are thorough in
providing all relevant information and come in good
faith, many disputes can be resolved in a single
Divorces can sometimes be more complicated and
intense, requiring two to four sessions. Still, many
divorces can also be settled in a single session.
How long is each mediation session?
The average length of a mediation session is 3-5
hours, although there is no set rule. We find that
after 5 hours people start getting fatigued, in
which case it is wise to stop and set a time for
another session. However, if progress is being made
and everyone’s schedule permits, it is not uncommon
to extend the session and work right through to a
bring a lawyer to mediation?
All parties should consult with lawyers before
signing any settlement memorandum. Whether you bring
your lawyer, your union representative or someone
else for support is strictly up to you. But you must
inform the mediator and the other party in advance,
of who else will be attending. People not scheduled
to attend are generally not permitted into the
mediation session without the consent of the other
mediation, can you guarantee a settlement?
The only ones who
can resolve a dispute are the parties themselves. If
either or both of the parties come in bad faith, do
not fully disclose the facts, arrive unprepared or
truly want their “day in court” than an agreement is
highly unlikely. The quality of a mediator is not
based upon how many clients were able to agree.
Rather, it is whether the mediator maintained
confidentiality, provided a friendly and neutral
environment for negotiations, followed the
facilitative mediation process, gave the parties
every opportunity to resolve their dispute and did
not attempt to coerce one party or the other into an
agreement he or she was not comfortable with.
In fact, when selecting a mediator, you may want to
be cautious of mediators that boast a really high
percentage of agreements reached. It could be an
indication of other possible issues.
mediator will not divulge anything that happened or
that was discussed during mediation. Nor will a
mediator willingly testify in court and will
aggressively resist doing so. The exceptions to the
confidentiality are in cases where there is
violence, threats of violence, potential harm to a
child or active criminal activity.
does mediation cost?
The cost of
mediation is usually a very small fraction of the
cost of going to court. Exact costs will depend upon
the complexity and length of your mediation.
Depending on their qualifications and expertise,
some mediators charge anywhere from $200 to $500 per
hour, although some charge more and some charge
less. Usually both parties share the expenses of
engaging a neutral mediator.
Can I bring my lawyer to mediation?
Yes, both you and
the other party can bring a lawyer. However you will
each be responsible for your lawyers’ fees. Whether
to use lawyers is something that both parties
usually agree to in advance of the mediation. As
mediation is a non-adversarial process, many prefer
to attempt to resolve their disputes without legal