YOUR MEDIATOR

JAMES LOH, M.Sc., Acc.Fm.(OAFM)

Mr. Loh is a qualified mediator member of the Arbitration & Mediation Institute of Ontario (Canada). He has successfully completed the following courses: Civil Justice for Non-Lawyer Mediators; Civil Procedure for Non-Lawyer Mediators; Civil Procedure for Contract Disputes and Wrongful Dismissal; & Mediation I & II Training Programs. He is also an accredited family mediator member of The Ontario Association for Family Mediation (OAFM) and Family Mediation Canada (FMC).

This handout will provide you with information about the mediation services offered through J. Loh & Associates. If you have a dispute with someone, or if a complaint has been directed against you, mediation may be the best route to resolve the matter. We will mediate issues such as: custody and access of the child(ren); support and maintenance of the child(ren); division of property and assets; support and maintenance for the spouse; family dispute; family reunification; neighborhood dispute; and victim-offender mediation.

WHAT IS MEDIATION

Mediation is a voluntary, informal meeting of disputing parties with a neutral third party, the mediator. Mediation is a practical way to help the disputing parties to check their facts and assumptions, exchange perceptions and ideas, and work toward mutually agreeable settlements. It allows each party to a dispute to understand the other person's position and it allows each person to be involved directly in the process.

Naturally, your concerns will differ from the other side, but you can agree to discuss alternatives that will respond to your interests. Most important, mediation is less adversarial, less expensive and less time-consuming than litigation before the courts.

It is important to understand that mediation is not a fact-finding process. Nor is the mediator going to make any kind of "decision". What mediation does do, is offer a safe, structured and controlled environment that will help the parties reach a fair settlement of their disputes. The disputing parties craft their own resolution or agreement with the assistance of the mediator.

ROLE OF THE MEDIATOR

The mediator assists the disputing parties to overcome the obstacles to communicating effectively. The mediator provides a safe place to talk, reframes the issues of the dispute, helps to identify interests, and facilitates the exploration of possible solutions.

BENEFITS OF MEDIATION

Control, future relationship, speed and confidentiality are the major benefits of mediation. It is a voluntary alternative to what may be a lengthy and expensive court battle.

First, you control the decision to mediate the dispute. Each party may withdraw at any time. Second, you have a direct role in the mediation process. Third, you have the power to decide whether to agree to a settlement at the end of the process.

The entire process is voluntary and there is no pressure to accept a settlement. If mediation fails for whatever reason, there will be no information passed on from the mediation file to any courts.

Because disputing parties are talking to one another honestly, the relationship between the parties is generally enhanced, thus preserving otherwise beneficial working relationships.

Mediation is almost always quicker than going to court or battling it out in other ways. This efficiency means that considerate time and money is saved for the disputing parties. Battling it out often becomes legalistic and threatening for many people, but mediating is structured, safe, controlled and less stressful.

An important benefit is the confidentiality of the process, allowing the disputing parties to be frank and open about their real interests. Information or documents that are generated by mediation will stay with the mediator. The mediator will not transfer his file to any courts or be involved in any future arbitration or litigation brought upon by either disputing party. Henceforth, the disputing parties agree not to consent to the release of information by the mediator for such purposes or for any purposes at any time.

All discussions regarding settlement in the mediation process are "without prejudice": this means that no one admits liability and information about mediation is not used in any proceedings that may take place later on.

In mediation, at least three people are involved: the two people who are in conflict and a third person, a neutral mediator. The role of a mediator is to help the disputing parties find a solution and resolve the conflict.

WHEN IS MEDIATION MOST EFFECTIVE?

Mediation is most likely to succeed in the following circumstances:

• Both parties are participating voluntarily.
• The relationship between the parties is important to both of them.
• Both parties are participating in a good faith attempt to settle. For example, they agree to make full disclosure of all relevant information; and agree not to dissipate nor dispose of assets during mediation without written consent of the other, nor take further action in any legal proceedings during mediation.
• Speed is important; both parties want a resolution in a timely fashion.
• Both parties want a measure of control over the outcome.
• Neither side wants to go to court nor litigation.
• The mediator is not personally invested in the outcome of the agreement, i.e., the mediator is impartial.
• The disputing parties perceive the mediator as neutral/objective.
• Both parties have the authority to settle the dispute, or can obtain authority immediately. For example, the person attending on behalf of a corporate respondent is authorized to reach a settlement at a mediation meeting.
• Both parties have an investment in the resolution of the dispute.
• Both parties need the opportunity to be heard in a nonthreatening environment with a neutral third party present.
• Both parties are able to speak for themselves, i.e., mentally sound.

WHEN IS MEDIATION LEAST EFFECTIVE?

It may be that mediation will not work. For example, this may happen if:

• Either side rejects mediation and wishes to proceed directly to using the courts or litigation.
• Neither side is willing to consider settlement.
• One side is seeking to punish the other. Mediation processes are healing in nature, not punitive.

WHERE WILL MEDIATION MEETINGS TAKE PLACE?

On neutral ground. Face-to-face meetings will always take place in locations that do not offer an advantage to either party. Usually meetings are conducted in the mediator’s office.

Distances may make it impossible to meet. If so, telephone conference calls will be set up. Sometimes, relations between disputing parties may be tense or unpleasant and one person may not be comfortable in the same room with the other. In these cases, the mediator will work with the parties individually and will go back and forth between them to convey positions, offers or settlement proposals. This is called shuttle mediation.

WHAT IF YOU WANT YOUR LAWYER PRESENT?

No problem. You can bring your lawyer, representative or any other person with you to the mediation. However, neither lawyers nor other representatives are a necessary part of mediation - it is up to you if you want to have someone with you.

To summarize:

• Any person who is a party to a dispute may be represented at a mediation meeting by legal counsel or a personal representative;
• If mediation is agreeing to by both parties, the parties and their lawyers or personal representatives will be invited to attend a mediation meeting, either face-to-face or by telephone;
• Where there are numerous disputants involved in the same mediation, specific persons must be identified as the spokesperson and members of the negotiating team.

WHAT HAPPENS IF MEDIATION IS SUCCESSFUL?

If mediation leads to a settlement, the mediator prepares a memorandum of understanding and other documents that may be required such as releases, letters of assurance, etc., for each disputant to bring to their solicitors for signatures. Both parties must agree and sign the settlement with their solicitors.

IF MEDIATION IS NOT SUCCESSFUL, WHAT HAPPENS?

You lost several hours of your time and spent some money. The mediation file remains confidential and the property of the mediator. If the matter proceeds to litigation, the file or the mediator will not be involved in such matters.

IF MEDIATION DOES NOT SUCCEED, CAN YOU STILL SETTLE?

Yes. You can enter into a private agreement to settle at any time.

WHAT IS THE LEGAL EFFECT OF A MEDIATED SETTLEMENT?

If the dispute is resolved, all issues that are related to or arising from the dispute are "closed". A memorandum of understanding is drafted, and disputants then consult their solicitors for signatures thereby making the settlement a legally binding contract.

KEY FEATURES OF MEDIATION

• Mediation is voluntary.
• Mediation is confidential.
• Mediation is based on mutually acceptable solutions. If you do not agree with the solutions proposed during mediation, you are free to reject them.
• Mediation services have a nominal fee.