Area of Law: Alternative Dispute Resolution (ADR) - Arbitration and Mediation
Answer # 0525
Role of mediatorsRegion: Ontario Answer # 0525
Mediation usually takes place at the office of the mediator, or at a place provided by the mediator. If there are several parties involved in a dispute, they may all agree to have a mediation meeting in a larger place, such as a meeting room in a hotel.
The mediator usually takes time before the first session to meet with the parties individually. The purpose of the initial meeting is to give the mediator the opportunity to hear the positions of each of the parties and to identify the issues that are in dispute. The mediator will be clear with each one of the individual parties that he or she is not representing any person or position and will not be taking sides. The mediator will also explain how the process works so that everyone has the same understanding of what will happen when all the parties are together.
The main role of mediators is to ensure that they are neutral participants in the meetings. The mediator is trained to assist the parties to listen to one another and to make sure that everyone feels that they are being heard. The mediator assists the parties to exchange their opinions without needless conflict and helps them to solve one problem at a time. The mediator will, with the agreement of the parties, give suggestions, if he or she feels that the discussions are stalled.
Unlike a lawyer in litigation, the mediator does not represent one side or the other. A mediator’s job does not involve giving legal advice. The mediator’s role is to try to bring the parties to agreement. By doing so, the mediator faces many challenges, including the following ten:
- Conducting an assessment before they take the case as to whether it is appropriate for mediation for any reason.
- Creating a neutral and safe environment — emotionally and psychologically, physically and legally — so that each party feels able to fully participate in the negotiation without fear, duress, or threats of reprisal, judgement or prejudice.
- Managing intense emotions in a way that allows each party to fully express their worries, concerns and goals, without disempowering or insulting the other.
- Identifying the contentious issues, and empowering the parties to go below the surface of those issues to help them gain some insight into the underlying reasons for their respective positions.
- Helping the parties to stay focused on the best interests of their children, and respecting the rights of children to have their views heard.
- Helping the parties better understand where the other is ‘coming from’ legally, emotionally and psychologically.
- Encouraging the parties to come up with their own solutions, and finding neutral ways to help them see options they may not be able to see themselves.
- Reinforcing the parties’ efforts to negotiate and keeping them at the table when the going gets tough.
- Reality-checking with each, often in private, their alternative to settlement, which is often either doing nothing or lengthy and costly litigation.
- Managing all of this in a way that lets each party feel heard, respected, and treated equally by the mediator.
The mediator’s role is to try to find some common ground between the parties, and work with them to help them come together to a final settlement on all issues.
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