Many people have questions about the mediation process. This guide is to help answer those questions. If you are considering using mediation please note that each mediator will have their own unique style and some information in this guide may not apply.
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1. Making Contact
People generally begin the mediation process by contacting a mediator. A person might contact a mediator by finding their information from an online search or through a referral from a friend or colleague. When people contact a mediator, they may ask questions about the mediator’s style, what the mediator’s fees are and what the mediator’s availability is to take on a file.
After a person has made initial contact with a mediator, each person that needs to be involved in the mediation will book a consultation. Mediators usually prefer if each party voluntarily contacts them to book a consultation, however, some mediators are willing to contact the other party or parties. During a consultation, people can ask questions about the process and express their priorities, values, needs and goals. Some mediators charge for consultations and others offer complimentary consultations.
3. Mediation Meetings
Once everyone involved has had their consultations, mediation meetings are booked. During these meetings, the mediator helps guide the parties through constructive conversations to work toward making agreements. Sometimes all the issues can be resolved quite quickly, and other times people need several meetings before they come to any resolution.
During a mediation meeting, a participant can take a break and speak with the mediator privately. This is called a caucus. If a caucus is called, the other person or people involved in the mediation will also be given the chance to have their own caucus.
5. Summaries & Agreements
Mediators usually provide participants with summaries of the mediation meetings. If agreements are made, a mediator might provide the participants with a written agreement, sometimes referred to as a Memorandum of Understanding. People may sign an agreement with the mediator or go to see a lawyer before signing.
6. Legal Advice
Many people choose to have their lawyers review an agreement before they sign it. When a person goes to get legal advice, it is important for them to remember that the scope of the law is very narrow and that some agreements made in mediation are outside of what a judge in a court would or could order. If a person has concerns about the agreement or if their lawyer has a concern, having a conversation with the mediator about it or scheduling another mediation meeting can be helpful. Sometimes unusual agreements are what best meets the needs of the people involved in the mediation, and a lawyer with the best interest of their client at heart will understand that and support their client’s decisions.
7. Signed Agreements
Agreements made in mediation, when signed, can usually be used for formal processes such as the transfer of property or registration with the Maintenance Enforcement Office. If a person has any concerns about enforcing an agreement, it is helpful to discuss that concern with the mediator or with a lawyer.
Mediation is a confidential process. Anything said or agreed to in mediation is kept private between the participants and the mediator. Mediators will not testify in court about something said in mediation and it is not appropriate for participants to disclose something discussed in mediation in an adversarial process. If an accountant, lawyer or other professional needs to be consulted regarding something being negotiated or agreed to in the mediation process, all participants will agree to the inclusion of that professional.
9. Ongoing Mediation
People sometimes use mediation and come to an agreement and later in life, there is a change and they want to renegotiate the terms of an agreement. Many mediators are happy to have clients return to renegotiate agreements.
10. Safety Concerns & Terminating Mediation
Though mediation is a private and confidential process, if there is a safety concern the mediator is obligated to report it to the appropriate authorities. Mediators are highly skilled and optimistic about participants being able to reach agreements in mediation, however, sometimes there are reasons a mediator might terminate a mediation. If this happens, participants can ask for the mediator’s reasons for termination. Sometimes it might be appropriate for participants to hire a different mediator, but at other times it might be appropriate for the participants to explore other process options. If a participant is the one who terminates mediation, the mediator and the other participant can ask about the reasons for the termination. There are often many diverse reasons why a participant might want to leave the mediation process, and sometimes that can be discussed and resolved, and other times participants may have to explore other process options.