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     What is Mediation ?      
   
Mediation
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
 -  Evaluative mediation
 -  Transformative mediation
 -  Narrative 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 include:
 
  • mediation is less adversarial,
  • mediation preserves business and/or personal relationships
  • mediation is easily accessible
  • mediation is confidential
  • mediation is affordable
  • the outcome is within control of the parties
  • clients experience high levels of satisfaction
Mediation FAQs

What is Mediation?

At 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 court.

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 of mediation?

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 future relationship.

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 unpleasant.

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 go-forward basis.

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 mediate.

What sort 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 litigation.

How does mediation work?

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.

Is 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?

If 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, court appearances.

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 session.

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 successful agreement.

Should I 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 party.

In 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.

Is mediation confidential?

Absolutely.  A 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.

How much 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 intervention.

 

 

 
 
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