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Mediation and Arbitration Specialists

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Court-connected mediation for the Superior Court of Justice at Ottawa

 

Frequently Asked Questions About Mediation

What should I do to get ready for mediation?

Lawyer's preparation guide for mediation

Arbitrator's and Mediator's Code of Ethics

Suggested Mediation Clause in an Agreement

Suggested Arbitration Clauses in an Agreement

What is mediation?

Mediation is a process in which an impartial third party, the mediator, facilitates communication between parties to a dispute to assist them in reaching a mutually acceptable resolution of the dispute or lawsuit.

Frequently, parties are locked in positions which are at the basis of the lawsuit - they are sure they know who is right. Mediators are trained to assist parties to move beyond those positions and to consider other options to facilitate the process of resolution based on common understanding and mutual agreement.

The mediator's role is to promote the discussion of issues in a constructive manner. This includes supporting the parties as they work to gain a better understanding of the interests of all parties, and how those interests might be commonly resolved. This is known as interest-based mediation.

Through mediation, it is possible to develop creative solutions to disputes in a way that the court could not consider should the matter go to trial. The parties, their lawyers and the mediator are the only ones who have a right to be present in mediation. What is said remains private. Parties in mediation may speak more openly than in court. Information arising from a mediation session cannot be used in Court should the case proceed. Settlement of the dispute is not the only positive outcome of a mediation.

A mediation will be considered successful even if the parties do not settle but gain a better understanding of the other side's position, if they have narrowed the issues, or if they have agreed on a process to resolve issues later in the proceedings.

What is court-connected mediation?         back to top

A lawsuit can be a long, expensive and difficult experience for anyone. In order to address these concerns, a system of case management has been implemented for civil cases commenced in the Superior Court of Justice at Ottawa. Many parties negotiate during the course of the lawsuit. Over 90 percent of all lawsuits settle before they go to trial. Court-connected mediation is a formal opportunity in the civil court process for the parties to sit down early in the lawsuit to talk and listen to each other. With the assistance of a trained mediator, parties may be able to avoid much of the expense and delay of the traditional court process. Cases can be exempted from the mediation referral only with the court's approval.

How do I choose a mediator?        back to top

The parties to the lawsuit can agree to choose a court connected mediator who will conduct their mediation session. If the parties cannot agree on a mediator, the court chooses and appoints one for the parties. Unless the parties otherwise agree, the mediation session must be conducted by a "court-connected mediator" who has met the requirements for admission to the roster.

A roster of court-connected mediators is available from:
* your lawyer;
* the Office of the ADR Coordinator;
* the Case Management Centre located on the fifth floor of the Ottawa courthouse (161 Elgin Street, Ottawa);
* the Carleton County Law Association Library located on the second floor of the Ottawa Courthouse.

In choosing a mediator, one might consider the following points:
* What is the mediator's training and experience in interest-based mediation?
* What is the mediator's knowledge about the court process?
* How does the mediator approach a mediation?
* Where will the mediation session be held?
* What is the mediator's hourly fee, should the mediation time exceed the 4 hour fixed tariff (1 hour preparation time in addition to the 3 hours for the mediation session)?

How long is the mediation session?        back to top

Most court-connected mediations occur and are concluded in a single meeting of the parties and the mediator. That meeting, which is called a mediation session, usually lasts 2 or 3 hours.

The length of a mediation session and the number of mediation sessions required depend on a variety of factors, including, the complexity and nature of the case, how well the parties have prepared for the mediation, how far they have progressed in settlement discussions and how well the parties integrate into the mediation process.

Neither of the parties is required to continue mediation for more than three hours. Of course, the mediator may end the mediation before that time if the case is settled or if he or she concludes that the process is not constructive for the parties. If the session exceeds three hours, the mediator may, with the consent of all parties, continue the session at his/her hourly rate.

Who should attend at the mediation?        back to top

The parties to the lawsuit must attend the mediation session. Most will be accompanied by their lawyers. However, a party cannot dispense with appearing at the mediation session by sending their lawyer. The mediation will not proceed if a lawyer attends the mediation session without his or her client. For the mediation to proceed, the parties must have authority to settle the case. Where the person representing a corporation, partnership or other organization does not have sufficient authority to settle, the mediator can refuse to proceed with the mediation session.

Where is the mediation held?        back to top

The mediation session may be held at the mediator's office, at the office of one of the lawyers in the case, at the office of one of the parties, at the courthouse or at any other appropriate location that is convenient and acceptable to all of the parties.

Who pays for the mediation?        back to top

Court-connected mediators will provide their services at a rate fixed by the court's practice direction. The parties shall pay the mediator directly or through their lawyers. The mediator's fees will be shared equally between all parties, unless the parties agree otherwise as part of the settlement. If a mediation session does not proceed because the parties adjourn or cancel it prior to its scheduled commencement, the parties may be required to pay a cancellation/adjournment fee to the mediator.

Getting ready for mediation?        back to top

In getting ready to mediate, it is important to think about the case realistically and creatively. Since mediation does not focus on rights and positions but is about interests, it is helpful to think about what is important to you in the lawsuit. Prior to the mediation, it is important for the parties to work together with their lawyers to prepare for a session that will be co-operative and productive. You may wish to read "Preparing for the Mediation" for detailed information. This document is available from the ADR Coordinator.

What to expect at a mediation session?        back to top

Prior to the mediation, each of the parties is required to provide a Statement of Issues to the other side and to the mediator. Where a party is represented, The Statement of Issues is usually prepared by the lawyer.

In their Statements of Issues each of the parties identify the factual and legal issues about which there is agreement and those that remain in dispute. The parties also briefly describe their case and their interests. In addition, they append to the Statement of Issues a copy of any document that is of central importance to the case. (It would be an unusual case where more than three issues are identified or more than five documents are appended).

Before the mediation session begins, all the parties sign a confidentiality agreement. No one other than the mediator, the parties and their lawyers, if they have one, will attend the mediation without the consent of all the parties. The mediator usually begins the mediation session by ensuring that various procedural matters relating to the mediation have been taken care of and that the parties understand the mediation process and how the mediation process will proceed.

What follows the mediation session?        back to top

After the mediation session, the mediator is required to complete and file with the court a certificate which indicates the following:

* the parties settled prior to the mediation session;
* the parties settled as a result of the mediation;
* the parties did not settle;
* the parties settled some issues as a result of the mediation.

The certificate contains no other information about what happened or what was said at the mediation. If the case settles at mediation, the lawyers representing the parties are responsible for ensuring that the settlement is implemented and that the case is formally taken out of the court process. If the parties do not settle, or settle some of the issues, the case will continue in the Court as set out in the Case Management Rule.

Source: Ottawa Pilot Mandatory Mediation Program

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What should I do to get ready for mediation?

To get the maximum benefit from mediation it is important to be prepared. Preparation will vary depending on the nature and circumstances of each case and your familiarity with mediation and dispute resolution. Your lawyer is best able to counsel you on what you should do to prepare for mediation. However, the following preparation checklist may provide you with some guidance.
Consider realistically what will happen and what you will do if you do not settle the case at mediation.

What are you chances of winning the lawsuit? What are your chance of losing? What is the best you can hope for in the lawsuit? What is the worst that can happen to you in the lawsuit? In between the worst that can happen and the best you can hope for, what are you likely to win and/or what are you likely to lose? What are the chances of you having to pay legal costs to the other party if you lose? How much would you have to pay? If you win, what are your chances of recovering legal costs from the other side? How much are you likely to recover? If you are suing someone for money, can the other side pay a judgment if you are successful?

What is the financial impact on you of winning or losing? Are there consequences to losing or winning the lawsuit beyond the money to be won or lost? Will winning or losing have a moral or psychological impact? Will the judge's decision create a precedent that is important to you?

What will it realistically cost to proceed with the lawsuit if it does not settle at mediation? How much is it going to cost in legal fees? How long is it likely to take for the lawsuit to be processed and what effect is that delay likely to have? Will the lawsuit cause you any stress, embarrassment or publicity? Do you have a relationship with the opposite party or someone else that might be affected by the lawsuit proceeding?

In some cases you may find that you do not have all the information, documentation or evidence you need to determine what will realistically happen if the lawsuit does not settle (for example, you may find you need an expert's report to determine your chances of winning or losing the case). If you are in that situation, ask yourself what it is you are missing, how important it is to evaluating the case, how you can best get it, how much time it will take to get it and how much it is likely to cost.

Prior to attending the mediation session, you should try as much as possible to have all of the information, evidence and documentation needed to assess what will happen if the lawsuit does not settle.
What are your best interests and what is in the best interests of the other side?

What are you hoping to accomplish by the lawsuit and why? If you are seeking money in the lawsuit, to what use do you intend to put the money if you get it? If the other party is trying to get you to pay money:

1) Can you pay if you lose?
2) How long would it take you to get the money together if you have to pay for it?
3) If the money is not readily available, what would you have to do to get it together?
4) What will you use the money for if you are successful in defending the lawsuit?

In addition to asking yourself what you are trying to accomplish by the lawsuit, you should consider and try to understand what the other side is trying to accomplish in the lawsuit. Try putting yourself in the shoes of the other side and imagine what you would be thinking and wanting if you were on the other side. If you are being sued for money, ask yourself what is it that the other side hopes to do with the money? If you are suing for money:

1) Can the other side pay?
2) Does the other side have the money readily available or would it take time to get it together?
3) If the money is not readily available, what would the other side have to do to get it together?
4) What will the other side do with the money if you do not win?

How is the amount claimed in the lawsuit calculated? If the calculation involves amounts for different elements (for example, principal, interest and legal costs), how important are each of these elements to you? If possible, draw up a list of the elements in order of importance. How important are are of the elements to the other side? If the other side was to draw up a list of these elements in order of importance, what would it look like?

If there is something other than money that is important to you or the other side in the lawsuit; for example, reputation, publicity or making certain someone does not "get away with it"? Are there any ethnic, political, organizational or timing factors that are influencing you or the other side in continuing the lawsuit? If there are, what are these influences and how important are they to you? How important are they to the other side? Is there something not covered by the lawsuit the other side has that you want or you have that that the other side wants? Is there something that the other side can do for you or you can do for it that is not covered by the lawsuit? If there are things in the dispute that are important to you other than any money involved, make a list of them and try to put a value on them by putting them in order of importance.

If you are unable to settle the case, is there anything you and the other side can agree to that would reduce the cost of proceeding with the lawsuit? Are there facts that you and the other side can agree on in the lawsuit so that these need not be proven by evidence in court? If there are, what are they? Draw up a list.
Imagine ways of resolving the dispute.

In light of what you know of your best interests and the best interests of the other side, are there any solutions to the dispute that can reconcile these interests or some of them? Is there something that the other side can give up or give into that is less important to the other side than it is to you? If the lawsuit involves money, is it possible to find something other than money which can be used to help settle the lawsuit?

A good way to do this part of the preparation is to make and analyze a list of everything you and/or the other side could do to get rid of the lawsuit. Start by writing down the extremes of you caving in completely in the lawsuit and the other side caving in completely. Then write down all the other possibilities that you can imagine. Do not try at this point to write down only the possibilities that are favorable to you or those that might work in a settlement. Make a list of all the possibilities no matter how workable or unworkable, favorable or unfavorable. Once you have what you consider to be a complete list of anything and everything that could be done to get rid of the lawsuit, go through each of the possibilities. Map out the advantages and disadvantages of each possibility and why you think each of them might work in a settlement.
Are there any limits on your ability to settle?

If you do not settle the lawsuit at the mediation, what must the settlement agreement include? Is there a clause or provision that has to be in the settlement agreement? If there is a limit on your ability or authority to settle, what is that limit?

Source: Ottawa Pilot Mandatory Mediation Program

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Lawyer's preparation guide for mediation

1. Know your case.

* Know which facts are disputed and which are undisputed.
* Know which facts are critical, which are important and which are merely background.
* Lay out the elements of your cause(s) of action and the facts you have in support. This will form the background for your opening statement.
* Know your damages or the other desired relief. Regardless of whether you are moving or defending the case, know what result you want.

2. Know your alternatives to settlement - know your risks.

* Know how long and how expensive it will be to go to trial and what outcome is possible at trial.
* Know what results are likely from a trial.
* Know your other options (such as walking away) and other tools (such as binding arbitration or binding summary trials).

3. Prepare your client (and prepare yourselves as a team).

* Explain the mediation process.
* Review the evidence to support your assertion of facts. Review the law as it appears to be, and how it will impact on the evidence.
* Determine the interests, concerns, fears and expectations the client has.
* Do a reality check. Identify strengths and weaknesses.

4. Validate the other party's case.

* At the very least, get disclosure in advance of all documents.

5. Examine practical and realistic alternatives to going to trial. Come prepared to discuss these.
6. Ensure that you bring the right person (one with real authority) to make a deal.
7. Inform the mediator in advance of any matters that are of special concern.
8. Explain your role in the mediation process.

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Arbitrator's and Mediator's Code of Ethics

This code is applicable to all members of the Institute in their capacity as arbitrators and mediators generally and in their undertaking of an arbitration or mediation appointment specifically.

1. A Member shall uphold and abide by the Rules of Conduct, regulations and other professional requirements adopted by the Institute.

2. A Member shall not carry on any activity or conduct which could reasonably be considered as conduct unbecoming a member of the Institute.

3. A Member shall uphold the integrity and fairness of the arbitration and mediation processes.

4. A Member shall ensure that the parties involved in an arbitration or mediation are fairly informed and have an adequate understanding of the procedural aspects of the process and of their obligation to pay for services rendered.

5. A Member shall satisfy him/herself that he/she is qualified to undertake and complete an appointment in a professional manner.

6. A Member shall disclose any interest or relationship likely to affect impartiality or which might create an appearance of partiality or bias.

7. A Member, in communicating with the parties, shall avoid impropriety or the appearance of impropriety.

8. A Member shall conduct all proceedings fairly and diligently, exhibiting independence and impartiality.

9. A Member shall be faithful to the relationship of trust and confidentiality inherent in the office of arbitrator or mediator.

10. A Member shall conduct all proceedings related to the resolution of a dispute in accordance with applicable law.
 

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Suggested Mediation Clause in an Agreement

Dispute Resolution:

"In the event that a dispute occurs that cannot be resolved by negotiation between the parties, the parties agree to use the services of a mediator(s) to attempt to resolve their differences and failing agreement on the procedure to be followed, it shall be conducted in accordance with the "Rules of Procedure for the Conduct of Mediations" of the Arbitration and Mediation Institute of Ontario.

In the event that mediation does not result in a settlement of the dispute, any unresolved issues may be taken to any other appropriate dispute resolution process agreed to by the parties including arbitration or an appropriate court process. Should arbitration be chosen, the arbitration will be conducted in accordance with the Rules of Procedure for the Conduct of Arbitrations of the Arbitration and Mediation Institute of Ontario."

Source: ADR Institute of Canada Inc.

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Suggested Arbitration Clauses in an Agreement

Arbitration under the auspices of the Institute can be commenced either pursuant to the suggested arbitration clause (or variation thereof) that follows as A) or, if no such arbitration clause exists, by subsequent agreement utilizing the suggested arbitration clause (or variation thereof) that follows as B).

A. Standard Arbitration Clause - Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration in accordance with the "Rules of Procedure for the Conduct of Arbitrations" of the Arbitrations Act, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

B. The arbitration of existing disputes may be accomplished by the use of the following:

We, the undersigned parties, hereby agree to submit to final and binding arbitration under the "Rules of Procedure for the Conduct of Arbitrations" of the Arbitration and Mediation Institute of Ontario the following controversy: (cite briefly). We further agree that the above controversy be submitted to (one) (three) arbitrator(s) selected from the Panel of Arbitrators of the Arbitration and Mediation Institute of Ontario in accordance with our agreement attached hereto. We further agree that we will faithfully observe this agreement and the rules and that we will abide by and perform any award rendered by the arbitrator(s), and that a judgement of the court having jurisdiction may be entered upon the award.

Source: ADR Institute of Canada Inc.

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