Frequently Asked Questions on Mediation


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What is mediation?

What is the difference between mediation and arbitration?

Is mediation voluntary?

What kinds of disputes can be mediated?

Who decides the outcome in mediation?

Why use mediation?

What issues can be dealt with through mediation?

Is mediation binding on the parties?

What is a mediator?

What role does the mediator have?

Do the parties to mediation need lawyers?

Should the mediator be a lawyer?

If the mediator is a lawyer, do the parties still need their own lawyers?

Is mediation held in private?

Is what is said during mediation confidential?

When can a dispute go to mediation?

If there is a limitation period involved in the dispute, does mediation suspend the time running?

How does mediation work?

What are the rights of the parties who go to mediation?

How long will the mediation process take?

Where does mediation take place?

When are mediation sessions held?

How much does mediation cost?

Why is mediation cheaper than going to court?

How do the parties prepare for mediation?

Why is mediation successful?

Is every dispute suitable for mediation?

What if one of the parties is more powerful or dominant than the other?

What happens if mediation is not successful?

Where do you go from here?

How do you select a mediator?


What is mediation?

An inexpensive, efficient way to resolve disputes. Constructive problem-solving in the presence of a mediator by parties who have a dispute. A safe place for people involved in conflict to talk freely and openly. A process in which a mediator helps people in conflict negotiate a mutually acceptable agreement. No result is imposed on a disagreeing party.

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What is the difference between mediation and arbitration?

In mediation, the parties themselves decide the outcome. In arbitration, the arbitrator decides the outcome of the dispute, after hearing evidence. 

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Is mediation voluntary?

Yes. The parties decide that they want to try to settle their dispute in this manner. The parties choose the mediator. Even in Ontario and other jurisdictions where mediation is mandatory in some types of law suits, the parties are still free to terminate mediation if it is not productive. No one can or will impose a settlement on the parties in mediation!

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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.

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Norman B. Pickell  Lawyer - Mediator - Arbitrator  58 South Street, Goderich, Ontario N7A 3L5  Telephone (519) 524-8335   Fax (519) 524-1530