A GUIDE TO MEDIATION
JAMES LOH, M.Sc., C.C.C., Acc.Fm.(OAFM)
James Loh is a certified counsellor and principal of J. Loh & Associates. He is a mediator, parenting coordinator, and family therapist and life educator who brings a diverse range of people skills to his clients. He has mediated issues such as: custody and access of the child(ren); support and maintenance of the child(ren); division of property and assets; support and maintenance for the spouse; family disputes; family reunification; neighborhood dispute; and victim-offender mediation. Mr. Loh has been in the mediation business for the past 14 years. He is on the roster of the Centre for Family Mediation in St. Catherines & Wellands, & the AXIS Family Mediation Inc. in the Waterloo Region. Both rosters are organized & staffed with qualified, accredited mediators to provide comprehensive & affordable family mediation for all area residents.
Mr. Loh is a qualified mediator member of the Arbitration & Mediation Institute of Ontario (Canada). He has successfully completed the following courses: Civil Justice for Non-Lawyer Mediators; Civil Procedure for Non-Lawyer Mediators; Civil Procedure for Contract Disputes and Wrongful Dismissal; & Mediation I & II Training Programs. He is also an accredited family mediator member of The Ontario Association for Family Mediation (OAFM) and Family Mediation Canada (FMC).
Mr. Loh is a member in good standing with several professional associations including: Canadian Psychological Association, & Canadian Counselling & Psychotherapy Association (Clinical Member, Cert. # 4305).
This handout will provide you with information about the mediation services offered through J. Loh & Associates. If you have a dispute with someone, or if a complaint has been directed against you, mediation may be the best route to resolve the matter. We will mediate issues such as: custody and access of the child(ren); support and maintenance of the child(ren); division of property and assets; support and maintenance for the spouse; family dispute; family reunification; neighborhood dispute; and victim-offender mediation.
WHAT IS MEDIATION
Mediation is a voluntary, informal meeting of disputing parties with a neutral third party, the mediator. Mediation is a practical way to help the disputing parties to check their facts and assumptions, exchange perceptions and ideas, and work toward mutually agreeable settlements. It allows each party to a dispute to understand the other person's position and it allows each person to be involved directly in the process.
Naturally, your concerns will differ from the other side, but you can agree to discuss alternatives that will respond to your interests. Most important, mediation is less adversarial, less expensive and less time-consuming than litigation before the courts.
It is important to understand that mediation is not a fact-finding process. Nor is the mediator going to make any kind of "decision". What mediation does do, is offer a safe, structured and controlled environment that will help the parties reach a fair settlement of their disputes. The disputing parties craft their own resolution or agreement with the assistance of the mediator.
ROLE OF THE MEDIATOR
The mediator assists the disputing parties to overcome the obstacles to communicating effectively. The mediator provides a safe place to talk, reframes the issues of the dispute, helps to identify interests, and facilitates the exploration of possible solutions.
BENEFITS OF MEDIATION
Control, future relationship, speed and confidentiality are the major benefits of mediation. It is a voluntary alternative to what may be a lengthy and expensive court battle.
Control over the process
First, you control the decision to mediate the dispute. Each party may withdraw at any time. Second, you have a direct role in the mediation process. Third, you have the power to decide whether to agree to a settlement at the end of the process.
The entire process is voluntary and there is no pressure to accept a settlement. If mediation fails for whatever reason, there will be no information passed on from the mediation file to any courts.
Because disputing parties are talking to one another honestly, the relationship between the parties is generally enhanced, thus preserving otherwise beneficial working relationships.
Mediation is almost always quicker than going to court or battling it out in other ways. This efficiency means that considerate time and money is saved for the disputing parties. Battling it out often becomes legalistic and threatening for many people, but mediating is structured, safe, controlled and less stressful.
An important benefit is the confidentiality of the process, allowing the disputing parties to be frank and open about their real interests. Information or documents that are generated by mediation will stay with the mediator. The mediator will not transfer his file to any courts or be involved in any future arbitration or litigation brought upon by either disputing party. Henceforth, the disputing parties agree not to consent to the release of information by the mediator for such purposes or for any purposes at any time.
All discussions regarding settlement in the mediation process are "without prejudice": this means that no one admits liability and information about mediation is not used in any proceedings that may take place later on.
The mediator will only inform the disputing parties' lawyers that no understanding was achieved or, if achieved, what the terms of the understanding were. Information will otherwise not be released unless ordered by a judicial authority, or if there is sufficient indication of a threat to self or others, or child abuse is suspected, or otherwise required by law.
HOW DOES MEDIATION WORKS?
In mediation, at least three people are involved: the two people who are in conflict and a third person, a neutral mediator. The role of a mediator is to help the disputing parties find a solution and resolve the conflict.
In most cases, parties to the dispute will be invited to the mediation process within a week of the date of receipt of the respondent's answer. The invitation will be for a meeting that will take place, usually within two weeks. If both sides agree to mediate, you will then be asked to sign a mediation agreement form at the beginning of the mediation meeting.
WHEN IS MEDIATION MOST EFFECTIVE?
Mediation is most likely to succeed in the following circumstances:
WHEN IS MEDIATION LEAST EFFECTIVE?
It may be that mediation will not work. For example, this may happen if:
WHERE WILL MEDIATION MEETINGS TAKE PLACE?
On neutral ground. Face-to-face meetings will always take place in locations that do not offer an advantage to either party. Usually meetings are conducted in the mediatorís office.
Distances may make it impossible to meet. If so, telephone conference calls will be set up. Sometimes, relations between disputing parties may be tense or unpleasant and one person may not be comfortable in the same room with the other. In these cases, the mediator will work with the parties individually and will go back and forth between them to convey positions, offers or settlement proposals. This is called shuttle mediation.
WHAT IF YOU WANT YOUR LAWYER PRESENT?
No problem. You can bring your lawyer, representative or any other person with you to the mediation. However, neither lawyers nor other representatives are a necessary part of mediation - it is up to you if you want to have someone with you.
Representatives should be told that the meeting is not a formal hearing. Information obtained during the mediation process is confidential and "off the record".
WHAT HAPPENS IF MEDIATION IS SUCCESSFUL?
If mediation leads to a settlement, the mediator prepares a memorandum of understanding and other documents that may be required such as releases, letters of assurance, etc., for each disputant to bring to their solicitors for signatures. Both parties must agree and sign the settlement with their solicitors.
IF MEDIATION IS NOT SUCCESSFUL, WHAT HAPPENS?
You lost several hours of your time and spent some money. The mediation file remains confidential and the property of the mediator. If the matter proceeds to litigation, the file or the mediator will not be involved in such matters.
IF MEDIATION DOES NOT SUCCEED, CAN YOU STILL SETTLE?
Yes. You can enter into a private agreement to settle at any time.
WHAT IS THE LEGAL EFFECT OF A MEDIATED SETTLEMENT?
If the dispute is resolved, all issues that are related to or arising from the dispute are "closed". A memorandum of understanding is drafted, and disputants then consult their solicitors for signatures thereby making the settlement a legally binding contract.
KEY FEATURES OF MEDIATION