Definition and Characteristics of Mediation

Definition:

Mediation consists of negotiation between disputing parties, assisted by a neutral third party and it is defined as: "The intervention into a dispute or negotiation by an acceptable, impartial and neutral third party (with no decision-making power) to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute".

Applications:

  • Cases where disputing parties have reached an impasse in their negotiations, but are still speaking and willing to have a third party neutral assist them in negotiating. Note: for construction contracts that fall into Public Services and Procurement Canada (PSPC)'s Dispute Resolution GC 8.
  • In some provincial legal jurisdictions, mediation is a mandatory part of the litigation process, before proceeding to trial. Authorized court officials dictate when mediation is to be used.

Characteristics of Mediation Process:

  • involves two or more parties in dispute over one or more contract issue(s);
  • entirely voluntary for non-litigious disputes;
  • non-coercive, in that the mediator does not decide for the parties, but rather encourages them to agree to a settlement;
  • 'assisted negotiation', the third party neutral (mediator) remains impartial;
  • mediator may provide relationship-building or procedural assistance and options which had not been previously contemplated by the parties;
  • mediator encourages parties to explore alternate possibilities/options in settling the dispute;
  • more informal and relaxed than that of a court or an arbitration;
  • rules are those which are agreed to between the parties;
  • confidentiality is an important ingredient of mediation;
  • all communications are without prejudice and cannot be used as evidence in subsequent arbitration or court action (those normally available through Access to Information and Privacy (ATIP) remain available);
  • each of the disputing parties control the disclosure of information to the mediator and what information can be disclosed to the other parties.

Components of Successful Mediation:

  • an agreement to mediate including: selection of a mediator, signing of a mediation agreement and venue (see "Mediation Proceess");
  • undertaking a comprehensive review of the issues and adequately preparing for mediation;
  • generating options and weighing their feasibility as possible settlement avenues with the assistance of the mediator;
  • reaching a mutually acceptable settlement and detailing the terms of the agreement in the form of a settlement agreement (these will vary depending on mediation specifics). Important: PSPC's representative as well as the other disputants must have authority to settle at the mediation table or have a telephone contact who can arrive at a decision immediately;
  • following up and ensuring implementation of the agreement.