Mediation
Private Matters, Elders, and Employment
Mediation for Private Matters
“Opt-In Mediation”
Going to court is almost never your only option.
Mediation is an ADR (Alternative Dispute Resolution) process which makes an effort to resolve issues, outside of the courtroom. Mediation can be “one on one” or the parties can bring representation (ie: lawyer/ paralegal). The goal is for the parties efforts to reach a resolution/agreement, which appropriate for their situation.
Mediation in a private dispute is a voluntary process. This means that the parties involved may voluntarily hire a mediator they have researched on their own, and voluntarily participate, or not. The parties are also responsible to determine who will cover the cost of the mediator’s fees and any costs associated with the mediation.
The mediator is not an adjudicator/judge and does not impose a binding decision on the parties. The mediator’s motive is to reach “consensus”, an agreement between the parties.
The mediator does not favour one side over the other, but rather will help both sides to: narrow down issues, brainstorm options, prioritize, and develop settlement agreements based on their own terms.
Mediation is confidential and because it will often include discussions about settlement, mediation sessions cannot be used as evidence in court. (ie: considered “settlement privilege”.)
Mediation can be used for a wide range of conflicts, including: civil, criminal, commercial, employment, and family matters, as well as in private disputes, administrative tribunals, and many other areas.
Mediation is distinctly different than going to court. In mediation, the parties work together to resolve disputes rather than compete against each other and strive for victory. Because the mediation process is flexible enough to be used for many types of disputes, it is often a part of settlement discussions for a wide range of legal matters.
The mediator is there to simply help the parties involved work through a process
The mediator does not:
- provide legal information or advice;
- does not generate options for the parties;
- does not take sides; and
- does not render a verdict.
Stages of Mediation
Disputing parties agree to mediate and select a mediator.
The mediator prepares a written mediation agreement that is signed by all parties before the mediation. The mediation agreement will usually cover matters such as the powers and responsibilities of the various persons involved, organizational and procedural matters, confidentiality and the payment of fees.
The mediation session could be held at a rented boardroom or meeting room. There is an additional cost involved with this option, which would be included in the mediator’s invoice to be paid by the parties as per the “mediation agreement”.
The mediator will establish “ground rules” at the outset of the discussions and reinforces them throughout the mediation session.
The mediator will begin the session with introductions of everyone present at the mediation session.
Each party (or representative) will have an uninterrupted opportunity to explain the series of events that brought the matter to mediation.
Based on what was presented in the opening statements, the mediator will identify the issues that need to be discussed further in order to fully appreciate each party’s underlying interests.
Once all participants have a solid understanding of each side’s perspective on the issues, the mediator will lead the parties through a process of brainstorming and generating different solutions. (May be conducted in joint session or in private caucus, or in combination of joint and private)
Once a number of possible options have been generated, the mediator will ask the participants to evaluate the options by applying objective criteria to determine which options are fair and reasonable for the circumstances of the case.
Once the participants have had an opportunity to consider all possible options, they may decide to pursue one of the proposed options (or a combination of the proposed options). At this point, the mediator will lead the parties through the process of drafting a settlement agreement, which will become a binding agreement once it is signed by the parties. Alternatively, if a settlement has not been achieved, the parties may opt to schedule an additional mediation session or terminate the session and pursue other options, such as litigation.
Any agreement reached at the mediation will be put in writing and signed by all the parties at the mediation. This agreement will form the basis of “minutes of settlement”.
NOTE: If the mediation is taking place virtually, this process will be adjusted as appropriate to the virtual setting.
The agreement reached at the mediation can be enforced through an application to the court if either party resiles from the agreement or there is some dispute at a later date about the terms of the settlement.
TBH legal offers in person or remote mediation sessions
Depending on the type and severity of the dispute, sessions can be booked in increments of two (2) hours, three (3) hours (half day), or six (6) hours (full day).
Elder Mediation
Let’s Create a Conversation...
It is important for families to talk about and resolve conflicts that concern the many issues in regard to aging parents. Elder mediation involves understanding family dynamics in order to decrease conflicts and help preserve family relationships.
As parents age, it is important to have conversations with family and those directly involved with their quality of life and daily care.
It’s an attentive and respectful process involving multiple parties, discussing multiple issues, in regards to an elderly loved one. If possible, it’s important to involve all parties directly involved, or who wish to be directly involved in the care of their loved one.
People who may be included are those relating directly to the issues including family members, friends, caregivers, and support workers. If the loved one is still cognitively able, they are also encouraged to attend.
The most important goal of Elder Mediation is to ensure each participant is respected and given the opportunity to be heard. Each person will be recognized as an important piece of the loved one’s caregiving family.
Aging is a process of change and development which often includes physical and mental needs to be discussed and examined. Using Elder mediation can prevent conflict within families and can help set boundaries, create routines, and establish roles for each individual who is interested in taking an active role in the loved one’s present and/or future care. Elder mediation can reduce family anxiety by preparing in advance, and potentially delaying the need for institutional care. Elder mediation helps solve issues in an honest and meaningful way.
A Memorandum of Understanding (MOU) helps the parties stay focused on achieving the agreed upon goals. Although not legally binding, using an MOU shows the willingness of the parties to move forward with a contract.
Elder Mediation often involves discussion and planning regarding many of the following issues:
- estate and retirement planning
- driving and transportation
- housing and living arrangements
- health care and medical decision making
- safety in the home
- abuse and neglect
- caregiving responsibilities
- relationship concerns
- new relationships, marriages, and families
- impact of separation or divorce
- religious concerns
- financial concerns
- holiday scheduling
- family business
- guardianship
- end-of-life issues and planning
- microboards
Elder Mediation Can Be On-Going
As time passes, and the elderly loved one declines physically, mentally, or simply requires different care. It is a great idea to reconvene with those individuals from the original session to update the plan that is in place, on a regular basis.
TBH legal offers in person or remote elder mediation sessions. Sessions can be booked in increments of two (2) hours, three (3) hours (half day), or six (6) hours (full day).
Employment Mediation
As an employee, often we refer to our workplace as our “extended family” or our “home away from home”. So what happens when dynamics change and your workplace becomes toxic, causing anxiety and feelings of hopelessness? Quitting is not always possible, nor is it fair. When an employee feels they have become a target, feels unappreciated, or feels alone they shouldn’t have to give up a stable financial situation.
Communication is always key to resolving issues and may be easier than you think. If you have tried to speak with HR, or HR just doesn’t exist in your workplace, and you are unsure what your options are, mediation might be the answer to bringing back a cordial work environment and salvaging work relationships – before feelings, words and actions go too far.
TBH legal offers in person or remote mediation sessions. Depending on the type and severity of the dispute, sessions can be booked in increments of two (2) hours, three (3) hours (half day), or six (6) hours (full day).
Hiring a Paralegal (TBH legal) as your mediator
2 things you should know…
Paralegal Rules of Conduct – Rule 2.01(6) states, “A paralegal who acts as a mediator shall, at the outset of the mediation, ensure that the parties to it understand fully that the paralegal is not acting as a representative for either party but, as mediator, is acting to assist the parties to resolve the issues in dispute.” This rule prohibits a paralegal from acting as both legal representative and mediator for the same matter, thus preserving mediator neutrality. Further, it would be a conflict of interest for a mediator to be retained as a paralegal in a matter where he or she had already acted in a mediator capacity.
- A paralegal shall, at all times, hold in strict confidence all information concerning the business and affairs of a client acquired in the course of their professional relationship and shall not disclose any such information unless: (a) expressly or impliedly authorized by the client; (b) required by law or by order of a tribunal of competent jurisdiction to do so; (c) required to provide the information to the Law Society; or (d) otherwise permitted by this rule.
- The duty of confidentiality commences at the very outset of the paralegal – client
relationship, even prior to a retainer, and continues indefinitely after the paralegal has ceased acting for the client.- This means it applies to all stages of the legal action, including ADR (i.e.: Mediation).
- Mediation, in general, is “confidential” but also because it will often include discussions about settlement, mediation sessions cannot be used as evidence in court. (i.e.: considered “settlement privilege”.)
