What kinds of disputes can be mediated?
Most kinds. For a partial list of the types of conflicts that
can be mediated, please click here.
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Who decides the outcome in mediation?
The parties to the mediation control the outcome. The
mediator has no authority to make a decision for the parties. If
all of the parties do not agree, there is no resolution of the
dispute.
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Why use mediation?
There are many advantages to using mediation. Mediation
allows the parties to create their own solution to the conflict.
Mediation is less expensive and less stressful than court.
Mediation is held in private and you can choose your mediator.
Mediation is faster than going to court. When parties go to
mediation, they have a better chance of preserving a
relationship (which is very important when the conflict involves
people such as parents of young children, fellow employees,
business associates and neighbours). For more information on the
advantages of mediation, please
click here.
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What issues can be dealt with through mediation?
Whatever issues the parties agree to refer to mediation. This
can be all or only some of the issues in dispute.
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Is mediation binding on the parties?
Yes - once a mutually acceptable agreement has been reached
by the parties. But until such an agreement has been reached,
mediation is not binding and either party is free to terminate
the process at any time.
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What is a mediator?
A neutral person with no vested interests, who helps the
parties reach a voluntary agreement. A neutral person who helps
the parties talk so that the parties can better understand the
problems and reach a solution. The mediator does not take the
side of any of the parties.
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What role does the mediator have?
The function of the mediator is to manage the process for the
parties, to get them talking, to help them better understand the
problems and to help them reach a solution that meets their
needs. The mediator sets the tone for the negotiations and tries
to create an atmosphere conducive to discussion. The mediator is
trained to keep the conversations going and focused.
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Do the parties to mediation need lawyers?
While it is not mandatory to have a lawyer, parties are
encouraged to at least seek legal advice before signing any
agreement. If all parties have their own lawyers from the
beginning, it is usually much easier to finalize an agreement.
Each party will find that her or his legal costs will be lower
by going to mediation than those costs would be if the dispute
goes to a trial.
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Should the mediator be a lawyer?
Not necessarily. It is the person, and not his or her
profession of origin, that is important. You want someone who
has the necessary training and skills to be an effective
mediator.
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If the mediator is a lawyer, do the parties still need their
own lawyers?
Yes. The mediator who is also a lawyer does not provide legal
advice to the parties. During mediation, the mediator is wearing
his or her "mediator's hat," and not his or her "lawyer's hat."
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Is mediation held in private?
Yes. The only persons present are the parties, the mediator
and whoever else they invite and agree upon. Unlike most court
cases, the public and the media cannot sit and listen to what
you say.
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Is what is said during mediation confidential?
For the most part, yes. Parties to mediation agree that what
is said during mediation will be "off the record" and will not
be used by one against the other in any later proceedings. Of
course, if something is disclosed during mediation that the
mediator is required by law to disclosed, - for example, child
abuse - that part of the discussion will not be kept
confidential.
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When can a dispute go to mediation?
Anytime - even after a trial has commenced. However, it is
better to have your dispute go to mediation as soon as you know
that you have a dispute and before a court case is started. Not
only will it be less expensive, but it may be easier to reach a
mutually satisfactory agreement.
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If there is a limitation period involved in the dispute, does
mediation suspend the time running?
No. Therefore, it is wise to take whatever steps are
necessary to protect your future legal rights. The person to
speak to about limitation periods is your lawyer, and not the
mediator.
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How does mediation work?
Mediation has the following steps: intake and explanation of
the mediation process; defining the issues and exchanging
positions; exploring interests and needs; exploring possible
solutions; coming to a mutually acceptable agreement; and
writing a memorandum of understanding. To read about the
mediation procedure in more detail, please
click here.
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What are the rights of the parties who go to mediation?
The right to understand the mediation process before
beginning mediation. The right to an impartial mediator. The
right to privacy and appropriate confidentiality. The right to
have input into the agenda of what is discussed in mediation.
The right to be treated with respect and dignity. The right to
be heard. The right to withdraw from mediation at any time. The
right to be able to obtain all necessary professional advice
before having to make a decision.
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How long will the mediation process take?
Family mediation usually requires several sessions, the
exact number being dependent on the number of the issues to be
resolved, the types of issues, the complexity of the situation,
the number of adults and children involved and the willingness
of the parties to reach a voluntary agreement. Norman Pickell
usually books each session for two hours. The first mediation
session can usually be held within a few weeks of the initial
contact with the mediator.
Non-family mediation can usually often be resolved in one
session lasting from two or three hours to all day. Sometimes it
is necessary to have a second session on a future date. Examples
of when a second session could be necessary include if there is
more information to be obtained, or if one of the parties is
without a lawyer and needs to obtain legal advice, or if one of
the parties needs a break until another day. An agreement
concluded through mediation can usually be achieved within a few
weeks of making first contact with the mediator. This is much
quicker than going to court!
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Where does mediation take place?
Mediation can take place almost anywhere that the parties
agree. Norman Pickell has facilities in his office for family
mediation sessions and small group sessions. In some cases it is
more appropriate for mediation sessions to be held in conference
and board rooms. Norman is able to arrange for those facilities
too. Mediation does not take place in a court room.
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When are mediation sessions held?
At a time that is convenient to all of the parties.
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How much does mediation cost?
It depends on how many hours the mediation takes, since most
mediators charge an hourly rate. Because the mediator's fee is
usually shared (in some equitable fashion) between the parties,
each party will not be incurring separate fees in the same way
that would be the case if the dispute was dealt with in an
adversarial way. The cost of mediation is usually much cheaper
than the cost of going to court.
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Why is mediation cheaper than going to court?
Mediation is an informal and flexible process which takes
less time than going to court. The documentation required for
mediation is much less than what is needed if the dispute goes
to court.
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How do the parties prepare for mediation?
Preparing for mediation is much easier than preparing for a
trial. To see what some of the things are that should be done to
prepare for mediation, please click
here.
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Why is mediation successful?
Mediation allows each party to be heard. The process also
allows each party to express feelings. Mediation empowers the
parties themselves to create and control the resolutions to
their dispute. In some cases, the solution that is reached is
more creative than that which any court could impose.
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Is every dispute suitable for mediation?
No. If there has been violence, intimidation or control that
makes it impossible for one party to be able to make an informed
and voluntary decision, and if the mediator decides that nothing
can be done to modify the mediation process to make it fair for
all of the parties, mediation cannot take place. In some
disputes a judicial precedent is needed and therefore the matter
needs to be resolved by a judge or jury.
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What if one of the parties is more powerful or dominant than
the other?
In most situations, a skilled mediator can use any of several
methods to level the playing field.
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What happens if mediation is not successful?
The parties are free to take whatever course of action they
believe is appropriate to resolve the dispute. This can include
arbitration and court action.
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Where do you go from here?
If you think mediation is the answer for your dispute, ask
the other party or parties - directly or through your lawyer -
to agree to mediation. (In some cases, at the request of one of
the parties, the mediator can make contact with the other
parties.) Once everyone agrees to mediation, then select a
mediator.
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How do you select a mediator?
Obviously, Norman Pickell would be delighted to have you
approach him to see if he is available! You can contact him
directly at
pickell@normanpickell.com. But if you prefer to use someone
else, please click here for
assistance in finding a suitable mediator.
To Return to the Mediation Index
click here.
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