Norman Pickell - Outline of Non-Family Mediation Procedure

As done by Norman Pickell, a mediator based in Goderich, Ontario.

As a general outline, my mediation procedure in a non-family situation is as follows:

Intake Call:

someone phones my office (one of the Parties, or it could be one of their lawyers)

my Assistant asks some questions and completes an Initial Intake Form

basic background information including:

names, addresses, phone numbers of Parties

names, addresses, phone numbers of their lawyers

general idea of issues to be mediated

I look at the completed Initial Intake Form

assuming that I feel that mediation would be appropriate

Information Package is provided to each of the Parties

Encourage Parties to have Lawyers (if they don't already):

if one or both of the Parties does not have a lawyer, I encourage her/him to have one

separate lawyers are needed by each Party for several reasons, including:

someone needs to prepare the Mediation Brief

each Party needs to have independent legal advice from his/her own lawyer

each Party needs to be fully aware of what her/his legal rights are before they can reach an agreement on the issues

even though I am a lawyer, I do NOT provide any legal advice to either of the Parties to the mediation

I, as Mediator, will NOT be asserting or protecting the legal rights of any of the Parties

if both Parties have their own lawyers from the beginning, it is usually much easier to finalize an agreement

if an agreement is reached by the Parties, but one or both of them does not have a lawyer, the Court may be less likely to enforce the agreement if one of the Parties breaches the agreement in the future

Arrange for Payment of Retainer:

I have a Retainer Contract that needs to be reviewed with each Party

I can mail it to the Parties or their lawyers

I charge for my time by the hour

the Parties are billed for all of my time, including time spent preparing for mediation sessions, talking to (or otherwise dealing with) the Parties' lawyers and other persons, and drafting an Agreement

I usually require a deposit of an amount equal to a certain number (depending upon the issues to be mediated) of hours of my time plus G.S.T. before I do anything further

as that deposit gets used, I will ask for a further deposit

the amount of this further deposit will depend on an estimate of the amount of time required to compete the mediation

usually each Party (assuming only 2 parties) pays one-half of the cost of the Mediator's time and disbursements; (sometimes there are exceptions)

each Party is responsible for paying for her/his own lawyer

Receipt of Mediation Briefs:

I like to have the Mediation Briefs given to be in advance so that I can read them before the mediation session

as well as having them exchanged in advance between the Parties the Mediation Brief should:

be as concise and precise as possible

identify the Parties

be objective

define the issues

summarize the facts

summarize the legal issues

include a copy of the court pleadings (or possibly a summary)

include copies of leading case authorities on the subject

discuss your strong points

possibly discuss your weak points

objectively set out everything that will be helpful to mediator in understanding what the case is all about

Joint Meeting with Parties and Their Lawyers:

the Party's lawyer will prepare her/his client for this meeting

I will give a brief Opening

each Party (or his/her lawyer) will then make an Opening Statement

each Party (or her/his lawyer) may take 5 - 10 minute to do this

at the end of each Opening Statement, I will ask the "listening" Party if there are any questions of clarification

the mediation will then proceed

Possible Caucus or Individual Meetings with Parties:

sometimes it is necessary for me to have further individual meetings with each Party

what is said in these "caucus" or individual meetings is usually kept confidential

there are several reasons why a "caucus" may be of benefit, including:

it can assist in trying to break an impasse between the Parties;

it can help the Mediator obtain some more information in a confidential setting that may be helpful to the mediation process.

2^nd Joint Meeting with Parties and Their Lawyers:

sometimes it is necessary to have a 2^nd joint meeting with the Parties and their lawyers

if there is more information that needs to be obtained,

if there is not enough time to complete the mediation at one sitting,

if one of the Parties is without a lawyer and needs to obtain some legal advice, or

if one of the Parties needs a break until another day

Reaching Final Agreement:

if Parties reach agreement, the terms of the agreement will be written out

I will review a terms with the Parties and their lawyers

the Parties will review the terms with their own lawyers (who are hopefully present with them)

if one or both of the Parties do not have lawyers with them, usually I will require the unrepresented Party or Parties to take the terms of the Agreement to her/his lawyer for review before signing

once all Parties have had proper legal advice, they can then sign the Final Agreement (with their lawyers acting as the witnesses)

It is difficult to say in advance how many hours will be required to complete all of the above steps in a particular mediation. Every mediation is different. The time required to complete the mediation from start to finish will depend on a number of factors, including:

the number of issues to be mediated;

the types of issues;

the number of Parties;

the complexity of the situation;

the willingness of the Parties to reach a voluntary agreement.

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