Kathryn Running - BSc., B.Ed., M.I.R
MEDIATION INFORMATION PACKAGE
 
What is Mediation?
Mediation is a process in which an impartial third party, the mediator, facilitates communication between parties to a dispute to assist them in reaching a mutually acceptable resolution of some or all of the issues in a dispute or lawsuit.
 
What should I do to get ready for mandatory or voluntary mediation?
What should I keep in mind during mediation?
A Key Point to Remember is......
                        The goal is not to convince, the goal is to understand,
                        communicate with each other and listen carefully!
To get the maximum benefit from mediation it is important to be prepared. This preparation will vary depending on the nature and circumstances of each case and your familiarity with mediation. The following points and questions are useful to keep in mind prior to the mediation session and throughout the process. Please note that the term ‘legal action’ is used to refer to both civil lawsuits and other legal actions someone may have at their avail, for example a grievance procedure or other organizational dispute resolution processes. This document is meant to assist those involved in a civil dispute claim and therefore bound by the ‘mandatory mediation’ rules (Rule 24.1 of Rules of Civil Procedure in the Province of Ontario) and those considering the use of legal action.
 
* Consider realistically what will happen and what you will do if you do not settle the dispute at mediation.
~ What are your chances of winning a legal action [civil dispute court case or rights/interest based grievance] (if applicable)? What are your chances of losing?
~ What is the best you can hope for in a legal action? What is the worst that can happen to you in a legal action?
~ In between the worst that can happen & the best you can hope for, what are you likely to win and/or what are you likely to lose?
~ What are the chances of you having to pay ‘costs’ to the other party if you lose?
~ How much would you have to pay?
~ If you win what are your chances of recovering ‘costs’ from the other side?
~ How much are you likely to recover?
~ If you are suing someone for money can the other side pay a judgement if you are successful? What is the financial impact on you of winning or losing?
~ Are there consequences to losing or winning the legal action beyond the money to be won or lost?
~ Will winning or losing have a moral or psychological impact?
~ How important is that moral or psychological impact to you?
~ Will a judge’s decision (in a legal action) create a precedent that is important to you?
~ What will it realistically cost to proceed with the ‘legal action’ if the dispute does not settle at mediation?
~ How long is it likely to take for a legal action to be processed and what effect is that delay likely to have?
~ Will a legal action cause you any stress, embarrassment or publicity?
~ Do you have a relationship with the opposite party or someone else that might be affected by a legal action proceeding?
 
* What are your best interests and what is in the best interests of the other side?
~ What are you hoping to accomplish and why?
~ Can you pay if you lose? How long would it take you to get the money together if you have to pay for it? What would you have to do to get the money?
~ In addition to asking yourself what you are trying to accomplish by any legal action you should consider and try to understand what the other side is trying to accomplish in the legal action. Try putting yourself in the shoes of the other side and imagine what you would be thinking and wanting if you were on the other side.
~ Is there something other than money that is important to you or the other side in the dispute; for example reputation, publicity or making sure someone does not “get away with it”.
~ Are there any ethical, political, organizational or timing factors that are influencing you or the other side in continuing a legal action?...If there are, what are these influences and how important are they to you? How important are they to the other side?
~ Is there something the other side can do for you or that you can do for them that is not covered by a legal action? If there are things in the dispute that are important to you other than money involved, make a list of them and try to put a value on them by putting them in order of importance.
* If you are unable to settle the case is there anything you and the other side can agree to that would reduce the cost of proceeding with a legal action?
 
* In light of what you know of your best interests and the best interests of the other side, are there any solutions to the dispute that can reconcile these interests or some of them?
 
* If you do settle the dispute at mediation what must the settlement agreement include? Is
there a clause or provision that has to be in the settlement agreement?
 
What is Rule 24.1- Mandatory Mediation?
Rule 24.1 is a pilot project establishing a program for mandatory mediation in case managed actions in the Regional Municipality of Ottawa-Carleton and the City of Toronto. Case management and mandatory mediation are complimentary and integrated programs designed to improve the civil justice system by reducing unnecessary cost and delay in civil litigation and to facilitate the early and fair resolution of disputes.
 
What is the Role of the Mediator in the Mandatory Mediation Program?
 
The Mediator’s role in the mediation is to assist and encourage parties to a dispute:
~ to communicate and negotiate in good faith with each other;
~ to identify and convey their interests to one another; to assess risks
~ to consider possible settlement options; and to resolve voluntarily their dispute
 
The mediator is impartial
‘Impartial’ means being and being seen as unbiased toward parties to a dispute, toward their interests and toward options they present for settlement.
 
Mediators should provide information about their role in the mediation before mediation commences, including the fact that authority for decision-making rests with the parties, not mediators.
 
Mediators should not provide legal advice to the parties.
Mediators have the responsibility to advise unrepresented parties to obtain independent legal advice where appropriate.
 
Mediators have a duty to ensure that they conduct a process which provides parties with the opportunity to participate in the mediation and which encourages respect among the parties.
 
What about confidentiality?
Rule 24.1 Mandatory Mediation sessions are confidential and without prejudice....The mediation session is a settlement negotiation and all of the contents and discussions will be inadmissible in any subsequent legal proceeding, that is, what transpires during mediation can not prejudice the ongoing civil litigation process. This process has been put in place to facilitate open, honest, direct and meaningful communication between the parties.
If however, a settlement is reached during mediation it is binding on the parties.
 
The mediator is not compellable as a witness in court proceedings by any parties to the mediation.
The mediator should maintain confidentiality in the storage and disposal of mediation notes, record and files. I shred all information received and exercise my ability to forget!
 
Who is required to attend the mandatory mediation session?
What about the Authority to Settle?
 

Rule 24.1 requires the parties and their lawyers if the parties are represented to attend the mediation session unless the court orders otherwise. The parties present at the mediation session must have the full authority to settle their differences at the mediation session. If a party requires another person's approval before agreeing to a settlement then arrangement must be madeprior to the session to have ready telephone access to the other person throughout the session.
It is the responsibility of both parties to make a good faith effort to fulfill their respective responsibilities according to any settlement reached at the medium session as soon as possible.
MEDIATION FEE STRUCTURE : Part 1
 
What is the cost of Mandatory Mediation (Rule 24.1)?
Roster Mediators are required to conduct the mandatory mediation session at a fee prescribed by regulation. The regulations provides that fees for the mediation cover:
one half hour of preparation time for each party, and up to three hours of actual mediation.
For a mandatory mediation session involving two parties the fee is $600.00 plus GST. To be divided equally between the two parties ($300.00 each)
[ $675 -3 parties; $750- 4 parties; $825 5+ parties].
 
I do not charge travel, room rental or long distance charges incurred in scheduling the mediation for the initial three-hour mandatory session. Interest charges do apply on accounts not paid within 30 days of invoicing.
 
Cancellation & Administrative Changes Charges:
If the parties wish to engage a different mediator after the Mandatory Mediation Program has already assigned the case to me a $ 50.00 administration charge per party applies.
 
Where the session has been cancelled by the mediator because the parties failed to comply with.
 
sub rule 24.1.10(1) - re:” statement of issues” or where a parties fail to attend within the first 30 minutes of the scheduled mediation a $250 cancellation fee (per party at fault) applies. If one party and the mediator appear for the scheduled mediation and the other party does not the party at fault will be charged $450.00.
For late submissions of “statement of issue” (they are required 7 days prior to mediation) a $35 a day late charge applies.
 
When mediation has been scheduled and all parties agree to postpone the mediation because more time is required for any reason the following administrative charges apply:
More than 2 weeks notice given to the mediator of a need to postpone: $50.00 per party
Between 1 and 2 weeks notice given: $100.00 per party
Less than one week’s notice: $150.00 per party
 
What are the fees & expenses for Additional Mediation Services?
The mediation may be continued beyond the mandatory three-hour mediation session at the request of the parties. If this is the case the fees are as follows:
* $100 per hour ($25.00 per 15 minutes) mediation contact time [1/4 hour preparation time per hour of scheduled mediation is included in the price] per party
* room rentals where applicable (split between the parties)
* long distance phone calls, faxes are billed as extra (as incurred)
* maximum $100 travel fee (split between the parties)
 
MEDIATION FEE STRUCTURE : Part 2
The following information applies to ‘voluntary mediation’ and other alternative dispute resolution consultations and assistance.
 
Pre-Mediation Consultation and Preparation:
Most pre mediation work is done over the phone. In some cases a face-to-face meeting is more appropriate / desired. I talk to each party involved separately (by phone or in person), in order to ascertain their commitment to mediation and to brief myself on the issues of central importance to them.
~ All preparation work is billed at $80.00 per hour ($20.00 per 15 minutes - minimum).
~ Any negotiated settlement report writing is billed at $80.00 per hour.
Mediation Session:
Mediation sessions can vary in length. A minimum of 2 hours is booked for each session. 3 hours is a recommended length. An agreement to mediate must be signed by all parties prior to the mediation session being conducted.
* Mediation timed is billed at $160.00 per hour for a 2 party mediation (a ‘party’ may include more than one person, e.g. a client and their lawyer/advocate). 3 or 4 parties = $200.00 per hour, 5 or more parties $250.00 per hour.
* Unless otherwise agreed upon the cost is split evenly between the parties.
Other Costs:
* Travel time to and from mediation sessions (from Kingston) is billed at $30.00 per hour to essentially cover vehicle costs. VIA train costs are charged as incurred for economy travel.
* Room charges where applicable apply on an ‘at cost’ basis.
* Mediations postponed with less than 48 hours notice and /or cancelled with less than 1 weeks notice will be billed at $150.00 plus accrued preparation time.
* 7% GST is charged on all accounts (GST # 874094097RT)
* Payment is due within 30 days of billing. Late payment interest charges are applied after 30 days at 2.0% per month.
* Mediation work done under ‘mandatory mediation programs’ e.g. Civil Litigation Mediation is billed according to the fee-regulated schedules.
* Group facilitation (e.g.) general meetings, panels, focus groups are billed at $150.00 per hour (including up to 1/2 hour preparation time) with a minimum charge of $300.00 per facilitation.