When a dispute arises that cannot be settled between the parties involved, some may assume that a trial is the natural outcome. As an adversarial process, going to court has the potential to damage relationships further. Additionally, the high cost of legal representation in these proceedings can further impact the parties.
However, court is not the only answer to solving disputes. Alternative forms of dispute resolution exist, such as mediation, to provide options beyond the court process. A central role in mediation is the mediator who must avoid “taking sides” to help find a workable solution for all parties involved. This article discusses what mediation is and the importance of mediator neutrality.
Mediation is a form of alternative dispute resolution
Mediation is a form of alternative dispute resolution that seeks to find a solution to a dispute outside of court. The process of mediation involves the parties gathering with an impartial and neutral third party who helps them hash out their differences. It is only binding where parties sign an agreement to that effect, after a resolution has been reached.
As a voluntary, informal process, parties are able to terminate the mediation at any time. There are also no rules of procedure that must be followed. Rather, mediation is a process that can be tailored to the parties’ needs. Discussions usually stay between the parties too, as mediation is generally confidential, although such confidentiality may be waived. Notably, certain parties are not entitled to confidentiality. For instance, where the federal government is involved, certain information may fall under the scope of the Access to Information Act or the Privacy Act and may therefore be disclosed on request.
The role of the mediator
Unlike the role of a judge, the mediator does not make any decisions in the mediation process. Instead, the parties to the dispute hold all decision-making power. The mediator helps facilitate communication and generates options for each side to consider. The mediator will also encourage each side to make concessions where possible.
In some cases, mediation may be emotional and involve a level of conflict or animosity. Mediators are equipped to deal with the intense emotions that might arise. They encourage each party to avoid confrontation by keeping the topic of discussion centred on the dispute and potential resolutions. However, this role may be tailored through a prior agreement by the parties based on their needs within the dispute.
Mediators must follow certain rules
Although the mediation structure may vary depending on what the parties decide, mediators do have certain rules they must follow. These may be set out by the parties in a contract or agreement, or they may be dictated by certain regulatory or licensing bodies. For instance, Ontario’s Mandatory Mediation Program applies in select locations across the province, including Windsor. Under this program, certain civil lawsuits must undergo mandatory mediation. The purpose of this is the save parties time and money by avoiding a lengthy trial, where possible.
Mediator Code of Conduct
The Canadian Bar Association – Ontario has assembled a Mediator Code of Conduct which must be followed by all mediators who are part of the Mandatory Mediation Program. The Code’s stated objectives are to:
- provide guiding principles for mediators’ conduct;
- provide a means of protection for the public; and
- promote confidence in mediation as a process for resolving disputes.
The Code of Conduct has sections dedicated to impartiality, conflicts of interest, confidentiality, quality of the process, advertising, fees, mediation contracts, and the termination or suspension of mediation. For example, the Code of Conduct provides that mediators can suspend mediation in the event that:
- the process is likely to prejudice one or more of the parties;
- one or more of the parties is using the process inappropriately;
- one or more of the parties is delaying the process to the detriment of another party or parties;
- the mediation process is detrimental to one or more of the parties or the mediator;
- it appears that a party is not acting in good faith; or
- there are other reasons that are or appear to be counterproductive to the process.
The importance of neutrality for mediators
A critical part of mediation is the neutrality of the mediator. Neutrality denotes an absence of bias or preference for either side of the dispute. This is to ensure that the process is carried out fairly.
The mediator must set their own personal beliefs and opinions aside to take on the role of facilitator. Any assistance the mediator provides must be for the sole purpose of helping the parties determine a resolution to their dispute in a way that works for them – not in the way that makes most sense to the mediator. Additionally, the mediator must be careful of the questions being asked, how they rephrase positions on each side, as well as how they communicate between the parties.
There are a lot of reasons why it is essential that the mediator remain neutral. One reason is that neutrality helps protect the mediation process in the same way that the judicial process is protected by an impartial and non-biased decision-maker. Although a mediator is not a judge and does not have any power to decide on the case or advise on the law, certain pillars of the process must be upheld to ensure fairness. This helps the mediator stay true to their intended role and provides them greater ability to assist in a way that is helpful to both parties.
Contact Willis Business Law for Fair & Effective Mediation Services
Managing Partner of Willis Business Law, Dina Mejalli-Willis, provides lawyers and their clients with unbiased, accessible mediation services. Parties benefit from Dina’s integrity and knowledge derived from her 17+ years as a civil litigator appearing before all levels of Ontario courts and numerous administrative tribunals. Counsel or parties wishing to retain Dina’s services can do so through her scheduling calendar.