Who Pays for the Mediation?
If you meet with David for a consultation only, there is no charge. David will speak with you to learn more about your case to assist you in deciding whether mediation is right for you, and if you have legal representation already, David can reach out to your legal representative to express your concerns with a view of helping to get your case advanced closer to a resolution.
If you book a mediation privately, without legal representation, the general rule is that all of the parties in the dispute will share the cost of mediation equally, unless the parties agree otherwise.
There are few instances where one party may have to pay the entire cost of mediation, and David can let you know if your case involves this type of scenario.
How to Prepare for Mediation?
The main purpose of mediation is to resolve the case without having a trial or a hearing, where possible.
In order to have a successful mediation, you will need to go in with a good understanding of what range of outcomes you would be willing to accept. Remember that in order to reach an agreement both sides will have to compromise. Indeed, compromise is essential to any successful mediation. If both parties want a result whereby they get “everything,” all that will happen is nobody gets anything (except a continuing and lingering dispute).
Often it is helpful to think about what your “best case” and “worst case” scenarios would be if the matter were to go to trial or to a hearing, and then think of some potential outcomes in the middle that you “could live with,” and where you feel you have been treated “fairly,” instead of being “overindulged.” Sometimes it is helpful to think of the minimum settlement that you would be willing to accept in order to avoid the risk of losing at a trial or at a hearing, and having the comfort of the matter being concluded so you can free yourself of the burden of the dispute.
Mediation can also be helpful to get results that you may not be able to get from a tribunal or a judge. For example, when you have a dispute for accident benefits that is coming before the Ontario Licence Appeal Tribunal, or a claim for long-term disability benefits against a disability insurer, the court/tribunal has no jurisdiction to award the future benefits potentially available following the hearing: hence no award can be made that will force the insurer to pay a lump sum into the future, however, at mediation, an insurer and the claimant can enter into a settlement for a lump sum payment into the future. In an employment situation, by way of example, a court cannot force the employer to give an aggrieved employee a positive letter of recommendation, but a settlement reached at mediation can include such a provision.
David will expect to receive some manner of mediation brief, or submission brief, that outlines the strengths of your case, supported where possible by documentation, or oral evidence given under oath previously. Usually briefs are bound and the supporting material tabulated into a brief. Ideally, these briefs should be delivered no less than ten (10) days before the mediation, so that David can read the briefs and adequately prepare for the mediation. Indeed, often David has questions following his review of the material, and he will reach out to the parties or their legal representative for clarification prior to the day of the mediation.
David will be able to provide you some guidance throughout the mediation process on whether he thinks the offers being made are appropriate or reasonable. However, it is your decision to accept or reject an offer, and you can always choose to continue on to a hearing if the offers being made are not reasonable to you.
Decide if You Want to Bring Someone with You for Support
Whether or not you have a lawyer or paralegal, you can bring a family member, friend or anyone else for personal support if you feel that it will help you make decisions. On the day of the mediation, you will explain to David who the person is, and why you want them present.
What if You are Unable to Meet Face-to-Face with the Other Parties?
Mediation should be conducted face-to-face. Most mediations start out with everyone in the same room, and then the parties are separated, with the mediator going from room-to-room to discuss the issues and offers privately with each party. In rare circumstances, however, it may be the case that a face-to-face encounter with the other party raises concerns, and you should advise David in advance of your mediation and explain why you do not want to be in the same room with the other party.
What can I Expect on the Day of Mediation?
As noted above, mediation usually starts with everyone in the same room. David will begin by explaining the process to all of the parties, such as explaining that all participants are expected to be respectful toward one another, not to interject, let people finish their submissions, approach the discussions with a view to compromise, etc.
After this David will usually explain his mediation plan and make sure that it is agreeable with the parties. David might suggest beginning with a joint session, in which both sides sit together for a discussion of the case. Alternatively, David might suggest starting with separate discussions. For example, David might say something like: “I plan to spend 30 minutes with the first party, followed by 30 minutes with the second party, and see where we get to at that point. If we need to go back and forth again, I will probably spend a shorter amount of time with each of you again.” You can ask for clarification of the plan, or to change it, at any time.
David may review the mediation brief with you and the other parties, sometimes together, or after splitting you into two separate rooms. David will likely have questions about what is contained in your brief, either for clarification or to get more information. The purpose of this is to make sure that David understands the parties’ positions.
You will have a chance to tell David, in private, about your views of the case, and what your objectives are. The questions asked by David will help him figure out what would be a fair resolution of the matter. You will have the chance to propose settlement options and to respond to options presented by the other side.
It is not normally necessary or appropriate to bring witnesses to mediation, however it is helpful to know what witnesses you would “bring to the table” if a hearing went forward. This information will help David to understand and assess the strength of your case.
You can ask for a break if you need it at any time, and for time to think about whether you feel comfortable with the settlement that has been offered by the other side. Remember, however, that if you only have a half day for the mediation, and it will pass surprisingly quickly.
What does David do During the Mediation?
David will consider what you and the other side have said and will look at any documents provided. David will present the proposals and counter-proposals made by each side to the other, and will make his own suggestions to keep the settlement dialogue moving forward.
If a case does not resolve following the day of the Mediation, often the dialogue between David and the parties can continue. David normally does not charge a fee for this, provided this service is not abused. An extra phone call here-and-there is fine, but if it involves another hour or two of David's time, then an hourly fee will be charged.
What if I Want to Tell the Mediator Something that I Don't Want the Other Side to Know?
Generally David will presume that anything you say can be revealed to the other side unless you tell him otherwise. If there is something that you want to be kept confidential, you should talk to David when you are alone in the room with him and explain that you want to tell him something that you don't want the other side to know. David will respect your privacy.
For example, you might want to tell David that it is very important for you to get any settlement money quickly, but you could ask David not to share that information with the other sidet. You don't want your need for quick payment to influence the amount of money offered or whether the other side will agree to your terms and conditions of settlement.
Will it Look Bad if I Decide that the Mediation is not Working and I Want my Case to Continue to Trial or a Hearing?
No. You have a right to a trial and/or a hearing. If you are not satisfied with the settlement that is being offered to you by the other side, despite hours of trying to persuade the other side to offer more, then sometimes you just have to take your chances at a trial. The offers made and rejected at mediation will not be revealed and cannot be used against you. The trial and/or hearing will be decided based on the evidence presented and the applicable legal principles involved in your case.
What if Progress was Made, but Time Ran Out?
The mediation is expected to be completed within the amount of time that you asked David to set-aside for your mediation, but in the event that “time runs out,” but the parties want to continue dialoguing, David will do his best to either stay longer, or set up another date if one is available in the near future. In the alternative, David often participates over the phone with the parties after the mediation, in order to provide that little extra boost to get the dispute resolved, ideally over the ensuing few days after the in-person mediation was concluded.
What Does a Settlement Agreement Look Like?
While all of the precise terms of a settlement will vary from one case to another, certain types of cases have some common terms. For example, in employment type cases, it is common place to see the following terms:
If money is being paid as damages for pain and suffering the settlement agreement will state that if the Canada Revenue Agency ultimately requires tax or other statutory deductions (which will not be deducted by the employer), the employee will be responsible for paying them;
If money is being paid as lost “income”, the settlement agreement will state that the amount you receive will be reduced by “all applicable statutory deductions” (which means the income tax, Canada Pension Plan and Employment Insurance deductions normally found on your income statement);
A term that the parties are required to keep the terms of the settlement confidential except insofar as it is required by law to be disclosed to third parties;
A term that no admission is being made (despite funds being exchanged)
Is there Only One Chance at Mediation?
No. Parties can mediate voluntarily as many times as they agree, however, this should be the exception, and not the norm. If the parties have their evidence in order, and come to mediation with a view of looking for a fair resolution that involves compromises on both sides, then one mediation session should be sufficient. A second mediation is typically only held when one of the elements above was missing during the first mediation, and hopefully by the second mediation, those missing elements have been ironed out, and are not repeated, so the second mediation brings the dispute to a successful end.
