Information and Resources
Facts and Questions about Mediation
Five things to know about mediation
#1 It’s voluntary – both parties must agree to participate in mediation.
#2 It’s confidential - the information you share with the room with the mediator remains confidential.
#3 It’s cheaper compared to going to court.
#4 It’s simpler and faster than the court system.
#5 It’s provides the parties more control over the outcome of their dispute because both parties must agree to any settlement. Unlike court, an outcome is not imposed.
The mediator's role
The mediator is charged with managing a voluntary process of facilitated negotiation between the parties to a dispute.
The mediator is responsible for:
- Ensuring a safe, neutral environment for respectful discussion of the issues the parties bring to the mediation;
- Ensuring each party has the opportunity to explain their objectives, needs and wishes;
- Assisting the parties to explore options for a mutually satisfactory outcome to the dispute;
- Maintaining the confidentiality of what is said during the mediation process.
What to expect in a mediation process
The mediator typically meets with the parties beforehand to explain the mediation process, explain the role of the mediator and to hear the story and objectives of each party to the dispute.
Mediation can take place in any comfortable room and ideally in a neutral location such as the mediator's office.
The mediator usually opens the process by reviewing what will happen and establishing ground rules for respectful discussion. He or she will also confirm the agreement of each party to participate in mediation.
Each party will then take their turn to describe the issues they wish to resolve through mediation.
The mediator manages the discussion throughout the process and summarizes emerging themes, points of agreement or disagreement.
He or she will help the parties identify areas where their interests and objectives may be aligned. Using a methodical approach and various techniques, the mediator will help the parties communicate with one another and identify potential elements of agreement. This stage of the mediation process often involves the mediator asking clarifying questions of the parties and framing the issues in a neutral unbiased way.
Sometimes, in order to facilitate information gathering and frank discussion, the mediator may choose , with the agreement of each party, to meet with each separately ("caucus"). The mediator can later bring the parties together again to resume a facilitated joint discussion.
At any time, any party is free to take a break during the mediation.
At any point either party may terminate the mediation process. The mediator can also choose to terminate the mediation process. The position and rights of the parties in the legal system are not affected by the termination of a mediation process.
Where an agreement is reached, the mediator will describe the elements of the agreement in writing and the parties may choose to have that agreement reviewed by their legal counsel or simply agree to the solution worked out in mediation.
When to Use Mediation
Mediation is an alternative dispute resolution process that can be used in a wide variety of contexts and subject matters. A good guide on when to consider using mediation, and when not, has been set out by the Government of British Columbia here .
Preparing for Mediation
Richard Shore, a founding partner of Gilbert LLP has written an insightful piece in Forbes magazine entitled Four Tricks that Make Mediation Work focusing on how clients can best to prepare for a complex mediation.
Family Mediation in Bermuda
Steps have been taken to encourage greater use of family mediation services in Bermuda and to make it more accessible. In July 2018, the Family Mediation Act was passed. What lies ahead has been discussed in some recent news accounts. Here is a link to a Royal Gazette article (by Owain Johnston-Barnes) entitled Mediation Services to be expanded for split families.
Work Place Mediation Tips
Mieke Brandon provides a useful overview for mediators dealing with work place mediation issues in an article entitled Tips and Traps in workplace mediation.