“Mediation” is intended to informally resolve disputes. It is a guided discussion to clarify what is important to each party and bring them closer to a mutually beneficial settlement option.

What Do I Need to Know About Mediation?

All discussion at the mediation session is off the record and cannot be used if the matter goes on to litigation. It is mandatory for named parties to attend the mediation session. Failure to attend could lead to consequences including being issued a Certificate of Non-Compliance and having the claim or response dismissed. Mediation provides an opportunity for productive discussions about potential resolutions. 

Role of the Mediator

The mediator’s job is to guide conversation and ensure both sides are heard without interruption. They are usually not lawyers or judges and will not order a solution or write a report. They generally do not try to influence parties in their decision making. The mediator’s role is simply to facilitate productive conversations to help the parties come to a resolution.

Individual Meeting

Mediation will typically begin with each party meeting separately with the mediator. The mediator will know little about the dispute other than what is set out in the statement of claim and statement of defence (the “Pleadings”). The mediator may, however, contact your lawyer prior to this meeting to ask for more information, if needed. During your individual meeting you will be given approximately 30 minutes to explain your position to the mediator. It is important to be concise and prepared at this step and it is recommended that you prepare a brief two-minute summary of your position.  Your lawyer will be there to assist you and will, of course, help you explain your position. Any information you reveal in this meeting is confidential so there can be open communication. The other party will also get a chance to tell their story to the mediator in an individual meeting before or after your meeting.

Group Meeting

The parties will then typically meet jointly with the mediator. This will include you and your lawyer, the opposing party and their lawyer, and the mediator. In this meeting the mediator will facilitate discussion on the issues at hand, and ask you to share your story with the other party. Candid discussions are common as everything said in mediation is “off the record” and inadmissible if the dispute goes forward in the litigation process. It is important to listen to what the other party has to say, even if you disagree. If the conversation becomes abusive the lawyers or mediator will intervene. There may be some questions and answers, but your lawyer will ensure it does not become a “cross-examination”. It is usually best to keep your answers brief. If at any moment you need time to talk to your lawyer in private, it will generally be allowed.

The mediator will explore settlement options but does not have the authority to make decisions for the parties. Many cases are resolved at mediation; however, settlements and resolutions are not guaranteed. Further correspondence or action may be required after the mediation. This could be to confirm settlement details, schedule further mediation, pursue other settlement methods, or to schedule the next steps in the litigation process if a resolution is not achieved. 

Mediation allows the parties to potentially resolve disputes without the need for further litigation. It is an opportunity to facilitate discussion in an effort to reach a solution that is mutually acceptable for all parties.

About the Authors:

David is a partner in the Regina office where his practice focuses on real estate, corporate and commercial law including small business, with a significant focus representing many developers and home builders in Regina.

David was assisted in compiling the information in this post by Regina summer student, Theresa M. Thera.

About McKercher LLP:

McKercher LLP is one of Saskatchewan’s oldest, largest law firms with offices in Saskatoon and Regina. Our deep roots and client-first philosophy have made our firm rank in the top 5 in Saskatchewan by Canadian Lawyer magazine (2017/18). Integrity, experience and capacity provide innovative solutions for our clients’ diverse legal issues and complex business transactions.

This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances.  Counsel should be consulted concerning your own situation and any specific legal questions you may have.