Mediation is a collaborative process which requires the utmost care, attention and expertise. A good mediator will steer the conversation and the parties (even those engaged in a high conflict case) towards a creative resolution. That is why it is extremely important that both parties choose their mediator carefully.
On a basic level, mediation is a dispute resolution method that involves a neutral third party who helps guide two opposing parties to reach a settlement that satisfies the objectives of both sides. The mediator can suggest options, which can be accepted or rejected by both parties. Nothing is binding until an agreement is signed by both parties. Mediations also occur on a “without prejudice” basis. This means that both parties and counsel can speak freely at a mediation and that nothing said at a mediation (including offers exchanged) can ever come up later in the case or in Court.
Think About What You Want From Your Mediator
Think about your goals for the session. Do you want a mediator who suggests options in order to help the parties move towards an agreement? Or, do you want a mediator who resists offering opinions so that the parties feel responsible for their agreement? Think about past attempts at negotiation and problems with those attempts. What are your choices if mediation does not work?
Think about your abilities. What are your strengths and weaknesses as a negotiator? What are the other party’s strengths and weaknesses? What are your emotional limitations? Do you expect the mediator to help you stand your ground if the other person negotiates better than you or has more “power?” Thinking about these issues is especially important if there is a power imbalance between you and the other party.
Think about the time frame within which you want an agreement to be reached and the budget that can be allocated towards an agreement.
Use all the resources at your disposal to compile a list of mediators.
Use your references to find reliable mediators who have successfully carried out sessions with people you already know.
Use online directories such as http://www.adrweb.ca/toronto-mediators to find mediators in Toronto.
Many national mediator membership organizations and trade organizations keep lists of practitioner members and offer referral services. Some may charge for referral services.
Read publications such as Canadian Lawyer, Lawyer’s Weekly and Law Times for featured mediators.
Contact the mediators on your list and ask them to send you their information about them and their practice: their resume, references and a sample of their written work.
These materials should cover most of the following topics.
- Mediation Training
- Written Work: – past agreements or contracts
- Whether they offer an orientation session
- Cost breakdown
- Whether they carry professional liability insurance
- Mediation certification
- Mediation organizations they belong to
Talk to the Mediators
Call or meet the mediators to gauge their interpersonal skills. Look for their ability to listen carefully, communicate clearly, problem-solve, their neutrality, emotional stability and maturity, integrity, organization and sensitivity.
It always helps when a mediator is a certified specialist in the field they are mediating for, especially when it comes to family law. Family law mediation requires a certain amount of legal knowledge, sensitivity and know-how in order to provide viable solutions regarding child custody, child support and property division.
Evaluate all the material and information you have gathered and make your decision based on what your goals are, and what works best for your case. What has worked for others may not work for you. A family law lawyer who is experienced with your case can often suggest that a mediator that satisfies all the checklists mentioned in this blog.