Area of Law: Alternative Dispute Resolution (ADR) - Arbitration and Mediation
Answer # 0531
The mediation processRegion: Ontario Answer # 0531
Procedures and protocol
The mediator will usually meet with each party individually before the mediation starts to talk to them about the dispute and their positions. At that meeting, the mediator will make sure that each participant understands what mediation is, what the role of the mediator is, and will review a Mediation Agreement with each party. The mediator will take this opportunity to explain that she or he may meet individually with the parties from time to time. The mediator will explain that anything the individual participants tell the mediator in private will not be shared unless the individual agrees.
Screening in family mediation
In family mediation, before accepting a case mediators who are certified by a professional organization — including all court-based mediators and the large majority of private mediators — are required to conduct a screening process (also referred to as a pre-mediation or intake meeting). Although family mediation is widely considered to be an effective and efficient way to resolve family law disputes, it is not appropriate in all cases.
It is well known that the time of separation is stressful for most people and is a dangerous time for victims of domestic violence. These factors can lead to imbalances of negotiation power that could lead to everything from an extremely uncomfortable experience, to a one-sided or unenforceable outcome, to a safety risk for a party, a child or a professional.
The screening process, therefore, is the best way to ensure each party is able and willing to fully and safely participate in the mediation process.
During the screening process, the mediator will:
- meet each party,
- learn what each party is seeking,
- determine if each party is legally prepared for mediation,
- see if each party is psychologically and physically safe to proceed with mediation,
- attempt to discover if any power imbalances exist,
- attempt to discover if there is a history of family violence.
If, after the screening process, the mediator determines that one or both parties are not ready or able to safely participate in the mediation, the mediator may choose to refer each party to supportive resources, including, in appropriate cases, safety planning. The mediator may postpone the mediation or decide that another resolution process may be in the family’s best interests. Or, the mediator may determine that any risks and imbalances of negotiation power can be effectively and safely managed in their process design decisions.
Most mediators charge a flat rate for this pre-mediation intake meeting, usually one hour of their time. In court-connected family mediation, this intake meeting is free.
The Mediation Agreement
Many mediators require the parties to enter into a Mediation Agreement with them about the process of mediation itself. The parties must decide such things as whether the mediation is confidential. If everything said and all discussions are private, it is called a closed mediation. If the contents of the discussions will be contained in a report that the mediator will provide to all the parties, it is an open mediation. The Mediation Agreement will also specify what fees will be charged for the mediation, who will pay those fees, and policies for cancellation of meetings. Most agreements also require the participants to agree that the mediator may meet with the participants individually and that she or he may provide suggestions to the parties if discussions are stalled. The Mediation Agreement is usually signed at the first meeting when all the parties are together.
The mediator will usually start the mediation by talking with the parties about the ground rules for the mediation. Often the mediator will set very basic rules, such as only one person may speak at a time, or a rule that the parties will not use the mediation for personal attacks against one another. The mediator will also invite the parties to set their own ground rules.
If the parties are able to settle their differences in mediation, the mediator will record their agreement in a memorandum, which is sent to all the parties to review with their lawyers. The memorandum will state that the agreement will not be final until each of the participants has had an opportunity to get legal advice.
If the lawyers have been present at the mediation, they may agree to write up the details of the settlement between themselves and have the parties sign the agreement at the next mediation meeting.
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