Mediation

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  1. What is mediation?
    Mediation is where a neutral third party, known as the Mediator, assists the disputing Parties to achieve a voluntary resolution of the issues to mutual satisfaction of the Parties. The Mediator cannot impose a decision on the Parties. Mediation is a process where the decision-making rests with the Parties.

    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.

  2. 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 when 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.

    What kinds of disputes can be mediated?
    Most kinds of disputes can be mediated, including business, commercial and corporate, employment, contracts, family law, estates, insurance, personal injury and many other disputes.

    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.

  3. Why use mediation?
    The advantages of mediation:
    • allows the parties to create their own solution
    • provides greater satisfaction for the parties
    • less expensive and faster than litigation preserves relationships between the parties
    • permit parties to choose their Mediator, whereas they cannot choose their judge,
    • litigation can be done at times and places more convenient to the parties;
    • less adversarial than litigation;
    • less stressful than litigation; and 
    • private – mediation does not become a public record and the public does not attend.
  4. 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.
  5. What is a Mediator and what role does that person have?
    A neutral person with no vested interests, who helps the parties reach a voluntary agreement. 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. The Mediator does not take the side of any of the parties.
  6. 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 to mediate. 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.
  7. Should the Mediator be a lawyer?
    Not necessarily. It is the person, and not his or her profession, that is important. You want someone who has the necessary training and skills to be an effective mediator.
  8. If the Mediator is a lawyer, do the parties still need their own lawyers?
    Yes. Even though a Mediator may also be a lawyer, the mediator 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.”
  9. 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.
  10. Is what is said during mediation confidential?
    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.
  11. 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.
  12. Where does mediation take place?
    Mediation can take place almost anywhere that the parties agree. Emery Jamieson LLP has facilities for mediation sessions in our conference and board rooms. Mediation does not take place in a court room.
  13. 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.
  14. 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.
  15. How do you select a Mediator?
    Emery Jamieson LLP would be delighted to introduce you to qualified Mediators who are members of our law firm. The Alberta Arbitration and Mediation Society, an affiliate of the ADR Institute of Canada, maintains a list of qualified Mediators in Alberta.