Mediation FAQ – Frequently asked questions regarding mediation:
Q: What is mediation?
Mediation is a private and voluntary method of dispute resolution in which the disputing parties agree to allow an impartial mediator to help resolve their differences in a respectful, non-adversarial manner. Taking no sides, the mediator guides negotiation that allows the parties to create a tailor-made agreement.
Traditionally, people have relied on the courts to resolve their legal disagreements. However, going through the court system can be time-consuming, expensive and confrontational. Mediation is a positive, cost-effective alternative to solving disputes in court. As a collaborative, non-adversarial process, mediation is particularly important when the parties hope to maintain or re-establish a positive relationship with one another.
For further information, please see Benefits of Mediation.
Q: We cannot meet in the same place. Can mediation still take place?
Yes. For parties who wish to participate in a joint session, but are not in the same place, mediation can take place by three-way phone conversation, or video-conferencing. Some mediators also offer services online.
Sometimes, it is not advisable for parties to the mediation to be in the same room together. In those cases, shuttle mediation takes place, in which the mediator travels between the two rooms where the separate parties are, and facilitates the negotiation.
Q: What is Shuttle Diplomacy / Shuttle Mediation?
Usually, the main work of negotiation takes place in joint sessions with all parties plus the mediator present. In cases where it is not advisable for the parties to be in direct contact with one another, the method of shuttle mediation can be applied. The parties remain in separate rooms, and the mediator travels between both of them and facilitates the negotiation .
At A Better Way Mediation, we offer all these forms of mediation to our clients.
Q: Do you mediate high-conflict cases?
Yes. At A Better Way Mediation in Toronto, we have handled many such cases. You are invited to call and consult with us about the features of your particular case and how we may be able to help you.
Q: What if there is domestic abuse in my case?
If you have experienced domestic abuse and wish to have your case mediated, safe mediation is possible with precautions. If needed, the mediator may schedule separate arrival and departure times for you and the other party. The mediator can also meet with each person individually in separate rooms.
Q: What Is Family Mediation?
Family mediation can take many forms. It helps the disputing parties to resolve their issues peacefully, and if children are involved, it helps keep the focus on their best interests. Parties who can benefit from family mediation include:
- separating couples who need help with division of assets
- divorcing parents who need help developing a workable parenting plan
- family members of different generations who are experiencing conflict
- individuals going through transitions such as blended families, new partners, elders requiring care, etc.
Mediation may be a good option when both parties are determined to work toward a fair arrangement that protects the best interests of the children. It may not be appropriate when there is a large power imbalance, violence, child abuse or neglect, alcohol or drug abuse, or serious psychiatric illness.
There is a special subcategory of family mediation called child protection mediation, for situations when child welfare authorities have been drawn in.
Q: What is the mediation process?
To begin, the mediator will meet with all parties individually, and then eventually the meeting will move on to a group meeting. Just a reminder, all the individual meetings are confidential and the information within those meetings will not be disclosed unless advised otherwise.
Once the group meetings are finished, the mediator may document some or all of the issues that was agreed upon into the Memorandum of Understanding. The mediation “hearing” session will run as long as the parties want/ agree upon. Depending on the amount of issues, the complexity of the situations, and on how well the individuals can get passed the issues they’re facing will depend on the number of sessions.
Q: Is mediation confidential?
In the vast majority of cases, yes.
In a small minority of cases, the exception usually is due to the form of mediation chosen at the outset (closed, open, partially open). Please see next question for more information.
Q: What is Closed and Open Mediation?
Closed Mediation: This is by far the most commonly used form of mediation. In this type, the content of the mediation process is kept completely confidential to the parties and their professional. This means that nothing mentioned during the sessions can be used in any potential future legal proceedings. It also means the mediator will not report to lawyers or court on the progress or content of the mediation, nor provide an opinion on the issues of mediation.
There are a few rare exceptions to this confidentiality:
- where there is potential harm to another, or the parties themselves
- where child safety may be concerned
- where the parties give their written consent to have information shared with another party or professional
Open Mediation: Open mediation is generally not confidential and documents are prepared at the end documenting the negotiations between the parties involved, in many cases if court proceedings are applicable then what is discussed and said during an open mediation can be used within a court proceeding.
Q: What does a mediator do?
Mediators are specially trained to help people work together to reach a resolution to a dispute that is acceptable to everyone involved.
Mediators are impartial and neutral. They do not have the power to make decisions about the case or impose a resolution. Instead, their role is to ensure that the discussion remains focused, organized and respectful. They are experts in making negotiations work.
Q: Does the mediator make decisions?
No. Mediators do not make decisions for their clients. The mediator is a neutral third party who helps to facilitate discussion between the parties. It is the individuals in the respective parties who ultimately make the decision(s).
Q: Can the mediator give legal advice?
No. Only a lawyer may give you legal advice. A mediator cannot give legal advice at any time and does not represent either party.
Q: Is mediation legally binding?
After a successful mediation, in which the parties have reached an agreement, the mediator creates a document called the “Memorandum of Understanding” (MoU). Once the document is signed it can be submitted to court, and then becomes legally binding.
At A Better Way Mediation, we recommend that each party consults with their individual lawyer prior to signing the MoU (or any other agreement). Once they have done so, the document can then be filed in court and becomes legally binding.
Q: How much does mediation cost?
Mediation is usually the most cost-effective method of dispute resolution for parties who cannot come to agreement on their own. It is charged by an hourly rate, which can vary depending on the seniority of the mediator and the amount of specialized qualification he or she has obtained. The final cost depends on the number of sessions required to reach agreement, which in turn depends on the number and complexity of the issues presented, as well as the flexibility of the parties involved.
In the majority of cases, the total cost (both in terms of finances and stress) will be a fraction of what it would have come to if the matter had gone through court.
Q: Do I need a lawyer?
We recommend that you consult with a lawyer when possible. Lawyers help their clients understand the law and make informed decisions.
Q: What is the role of a lawyer in mediation?
Once the parties have identified the issues of dispute and have come to an agreement about those issues through the mediation process, it is important for them to be informed about their legal rights and obligations with respect to those issues.
Consequently, it is advisable for the parties to submit the written agreement created by the mediator with each of their individual legal representatives for review and sign prior to filing in court.
Q: Can mediation help with Parent – Teen Conflict?
Yes. Parenting teens can be challenging at times. Having a neutral third party like a mediator present can help defuse the tension and hostility, as well as create an environment which reduces frustration with one another and helps promote calmer, clearer, more productive discussion.
Q: Can mediation help with divorce?
Divorce is an overwhelming and anxious period for all parties involved. Negotiating a settlement with the help of a mediator can ease the stress and hostility. As experienced neutral third parties, mediators can provide helpful information and facilitate a rapid and smooth discussion to produce a mutually acceptable separation agreement including such matters as custody, access, child & spousal support, division of assets & liabilities, parenting issues, financial matters, etc.
Divorce can become extremely costly. Participating in mediation rather than litigation can mean saving a tremendous amount of money, which can be better put towards the future of the family members.
Q: When is mediation not appropriate?
It is not appropriate when there is a large power imbalance between the parties; this includes violence, child abuse or neglect, alcohol or drug abuse, serious psychiatric illness, or when one of the parties does not commit to the process.
Q: What if we cannot agree on all issues?
Most mediations end with a full or partial agreement. Even if only a partial agreement is reached through mediation, it still can help to narrow the issues and limit the time and money spent on your case. If no agreement is reached, the matter may go to court.
Q: Do you offer evening and weekend appointments?
Evening and weekend appointments can be arranged. Please speak with one of our professionals at A Better Way Mediation about your preferences and we will do our best to accommodate you
Q: Are mediation sessions confidential?
All information is confidential. Your sessions with a mediator are confidential. Our goal is to provide a safe environment for you to talk comfortably ( unless you sign a written release of information for a specific person or agency). There are some rare circumstances in which we are legally required to break confidentiality, such as knowledge of serious and foreseeable harm to you or others is evident.
Q: What if I need to cancel an appointment?
We ask that clients provide as much advance notice about cancellation, and at least 24 hours. For less than 24 hours notice (unless it is an emergency or circumstances beyond the client’s control) we charge for half an hour’s fee. If a client does not show up for a scheduled appointment and gives no notice, a full hour’s fee is charged.
Q: What is “without-prejudice privilege”?
This is a legal term. “Without-prejudice privilege” in common law refers to situations in which an honest attempts to reach settlement, any offers or admissions cannot be used in court when the subject matter is the same. This applies to the mediation process.
Q: I’m interested in mediation. How do I get started?
Please call us, and we will be pleased to make an appointment.
Q: What happens if we reach an agreement through mediation?
If you and the other party or parties reach an agreement, the mediator may draw up a Memorandum of Understanding (MoU).
Q: What happens once the mediation is over?
If the mediation settles all the issues, or only some of them, the matters that have been agreed to will and will be put in writing and signed. Alternatively, where a court action has commenced, the parties may go together to court and ask for a consent order, which is a court order made by agreement at the request of all parties.
If some or all of the issues are not settled through mediation, those aspects of the dispute that have not been resolved can proceed through the court process. Even if mediation does not settle all the issues in dispute, it may still be helpful in making the court process shorter and easier.