In this post I thought I would cover the basics of how to book a mediator and how to suggest mediation to the other party. The bulk of this article will deal with the mediation of conflicts that would otherwise end in litigation (Employment and Grievance Mediation).
How to Book a Mediator
When it comes to workplace and employment mediation there are two distinct paths for how to book a mediator.
Employment Mediation
Employment mediation and grievance mediation both require the consent of the parties to proceed to mediation. In jurisdictions with mandatory mediation, mediation is needed to go ahead with litigation. In mandatory mediation the parties can be compelled to attend. Most mediations are not mandatory. Typically the party proposing mediation will suggest three mediators to the opposing party. The letter suggesting the mediators normally invites the other party to agree to respond with their selection. The other party is also free to respond with their own list of mediators. Once the two parties agree on a mediator they will figure out a few potential dates for mediation. Then they will invite the mediator to convene a mediation on any of the available dates.
I have created a simple template referral letter and a response letter for use in your practice.
Workplace Mediation
Workplace mediation is where management hires a mediator to deal with a conflict between two or more employees. It is simple to book as the employer knows when the employees are working and available to spend time in mediation. I recommend that employees be given the choice to participate in mediation even if the choice to not participate carries consequences, at least they have made a choice.
Once contact with the mediator is made and dates arranged an agreement to mediate will be sent to the employer to share with employees. Typically these meditations will occur in the workplace, but they may be facilitated off site when appropriate.
Who Can Book a Mediator?
Any party to the dispute can book the mediator but typically the party who proposed the mediator that was agreed-upon contacts mediator with potential dates.
In the case of a mediation between employees, the employer or a human resource staff member will typically book the mediator as the employer is carrying the cost
Who pays for the Mediator?
For mediations between litigating parties the cost of the mediation is generally split between the parties. For mediations between disputing employees the cost is covered by the employer.
Who Should Attend Mediation?
The most successful mediations occur when the parties who are actually in the dispute attend the mediation. When representatives of the parties are sent alone they may have difficulty expressing the interests underlying in the positions taken by their principals. At a minimum the people attending mediation must have authority to settle the dispute. Without both parties present having authority to settle the dispute parties with authority maybe unwilling to participate.
Do I need a lawyer?
Really when you’re asking yourself the question “do I need a lawyer?” The answer is usually yes. In mediation this guidance holds true. Mediators cannot give either party legal advice because they must remain neutral. Some people may choose to attend without their lawyer but have sought advice prior to the mediation. For parties that attend mediation unrepresented, I always recommend that they consult a lawyer prior to drafting the terms of settlement into a binding agreement.
When Should I Call a Mediator?
Any party can suggest mediation at any time. As a case progresses through litigation the costs go up. Going to mediation early is generally a good idea. In Toronto, mandatory mediation is required before a the superior court will set a trial date.
Can Mediation Hurt My Case?
Attending mediation cannot hurt your case. The information created for mediation and the discussions held at mediation are subject to settlement privilege. This privilege protects discussions relating to settlement from admission into civil court. The goal of this privilege is to encourage potential litigants to discuss options for settlement freely in order to settle their dispute.
Do I Need to Sue?
This one is both yes and no. While you don’t technically need to sue in order to participate in mediation, the practical reality is that you probably do. Any two parties can agree to ask a mediator to help with any problem. Unfortunately, often organizations aren’t interested in mediation prior to a legal claim being made. In disputes with individuals and smaller employers, this lack of interest is usually related to a lack of perception of the chance of litigation. In larger employers, often the pathways to get to those with authority to settle do not exist outside of a legal claim being made.
Ready to Book a Mediator?
Wakely mediation is ready to help you with your employment, grievance and workplace mediation needs. Contact us when you are ready to mediate or if you have any questions about mediation.
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