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
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