Mediation Information

What is “mediation”?

Mediation is the process by which persons involved in a disagreement or dispute engage in a guided discussion for the purpose of trying to resolve the dispute. In appropriate cases, Adjudicators may act as Mediators to facilitate such discussions for the purpose of resolving human rights complaints that have come to them from the Director of Human Rights, by way of appeal or referral to a hearing.

Why try mediation?

Mediation is a different process than the hearing process. The hearing process places the task of proving that unlawful discrimination has occurred on the Complainant and, in many cases, places the task of proving that discrimination is justifiable, on the Respondent. Both of these tasks require careful preparation and significant time, cost and effort (see Hearing Information).

Mediation can be faster, less time consuming, less costly, less stressful, more private, and less formal than hearing proceedings. Typically, there is no “winner” and no “loser” when the mediation process results in a settlement. Instead, both participants may leave the mediation process with an agreement in hand that is not only acceptable to them but which allows them to put the dispute behind them and get on with their lives. Sometimes relationships are actually restored through the process of mediation.

How does it work?

Like any “discussion”, the participants are encouraged to talk about the circumstances surrounding the filing of the human rights complaint. They will talk about how they (and perhaps other people) have been affected by what happened. The Adjudicator (who I will refer to as the “Mediator” now) may ask questions of the participants and summarize what each has to say to clarify and help both parties understand each other.

If they agree, and the Mediator has sufficient information to do so, the Mediator may offer an opinion about how each might fare before an adjudicator at a hearing.

Participants may employ lawyers, advocates or other support people to assist them during the mediation process.

Mediation may also take place using the Adjudicator as a conduit or conveyor of information between participants who do not wish to meet with each other during some or all of the proceedings. This type of mediation is sometimes called “shuttle” mediation.

Shuttle mediation is a form of “caucusing”. A ‘caucus’ is simply a private discussion between the Mediator and a participant. Caucusing may be used for a variety of reasons, for example to allow emotions to be vented, to discuss effective negotiation techniques, to explore unspoken concerns and interests, to help a Party to develop a proposal and to simply explore possible solutions.

The Mediator is a professional person, committed to maintaining a neutral and fair process for all participants. Consequently they should not fear that the Mediator’s neutrality will be affected by direct, private communication with them.

If a mutually acceptable settlement agreement is reached, the participants will be encouraged to have the agreement reviewed by a lawyer before signing it off. When an agreement is signed-off by the participants, they must file a signed Form F, Withdrawal Notice at the HRAP office.

How long does the mediation process take?

The pace of mediation depends upon (1) the complexity of the issues under discussion, (2) the willingness of the participants to be open and share information, thoughts and feelings and (3) the degree of commitment that they have toward finding a mutually acceptable solution. Some matters are resolved in a few hours; some a few days or more.

What if I do not want to continue with mediation?

The Mediator and any one of the participants in mediation may stop the process at any time. This means “to take a break” or “permanently”. Sometimes a break of a several days is useful for the participants to reflect on the process. Sometimes the Mediator or the participants decide that the process is not working well enough to continue.

What if mediation does not result in a mutually acceptable solution?

Mediation is a private process. What is said and what takes place during mediation is confidential between the participants and between the participants and the Mediator. The participants will be required to agree to this condition before mediation sessions begin. Therefore what is said and done during mediations (or what results from them) is not admissible in a Court of law (nor in any subsequent HRAP hearing).

However, a failed attempt at mediation does not prohibit the participants from commencing or continuing hearing proceedings.

I want to try mediation. What do I do now?

Review the draft Mediation Agreement, Form C, and Rules 25-27, carefully (with your lawyer if you have one). If you are prepared to agree to its terms and conditions, let the other party to your complaint know or let the assigned Adjudicator know. If both parties to the complaint agree to give it a try, and if the assigned Adjudicator is in agreement, the process will begin just as soon as all participants, including the Adjudicator, has time available to begin a session.