1. What is mediation?
2. What are the advantages to mediating over pursuing litigation (court)?
3. Is mediation always preferable to litigation?
4. What is the difference between arbitration and mediation?
5. What is "Mandatory Mediation"?
6. What should I look for in a mediator?
7. How long does mediation take?
8. Do I need a lawyer for mediation?
9. How much does mediation cost?
10. Who pays the costs of mediation?

1. What is mediation?
Mediation is an informal process in which an impartial, neutral third party assists in a dispute or negotiation. The mediator has no power to impose a decision or solution to the parties, but rather facilitates the disputing parties in voluntarily reaching their own mutually acceptable settlement of issues by structuring the negotiation, maintaining the channels of communication, articulating the needs of each party, identifying issues, and, if requested, making recommendations on disputed issues. The mediation process may involve legal counsel. Open communication between the parties as well as between their counsel are encouraged. Generally, discussions during mediation are kept confidential and are not to be used against the parties in legal proceedings.

2. What are the advantages to mediating over pursuing litigation (court)?
The advantages of mediation include the following:

• MORE EFFICIENT - instead of disputes taking months and often years, mediated disputes usually conclude in a matter of days or weeks.
• ECONOMICAL- beyond the obvious out-of-pocket savings in legal expenses, there is the cost savings of personal productivity that would have been lost while the parties spend enormous amounts of time and emotional energy attempting to resolve the dispute.
• CONFIDENTIALITY - instead of being part of a public record, a mediated dispute can remain as private and confidential as the parties desire.
• MORE CONTROL - instead of parties having the decision rigidly imposed by the court according to schedules, a mediated dispute can generate customized solutions appropriate to the parties needs.
• PRESERVATION OF RELATIONSHIP - the adversarial nature of litigation often destroys an already fragile relationship. Through mediation, the parties can work together to strengthen the relationship without the lingering animosity or bitterness associated with litigation.

3. Is mediation always preferable to litigation?
No. There are some instances that mediation may not be suitable, and traditional litigation is preferred. In disputes that are likely to have a high precedent value, it may be important to have the dispute decided in a public forum. Examples include human rights cases with national implications or cases that interpret a new provision of amended or new legislation. Such cases are needed to be decided publicly in order to provide the benchmark for future cases, whether those future cases are resolved in the courts or through mediation.

There are a number of other factors that parties may wish to consider in determining whether mediation is appropriate, such as:

• Is there a possibility of an ongoing relationship among the parties?
• Do the parties have a history of extreme hostility?
• How many parties to the dispute? (four or less is preferred)
• How seriously do the parties really desire settlement?
• Are there external pressures to settle (time, money, unpredictable outcomes, etc.)?
• And probably most importantly, Will all the parties agree to mediate?

4. What is the difference between arbitration and mediation?
Arbitration is a process whereby a mutually acceptable, neutral third party makes a decision on the merits of the case, after an informal hearing which usually includes the presentation of evidence and oral argument. There are a number of different variations of arbitration processes depending on factors such as:

• binding or non-binding;
• voluntary or compulsory;
• private agreement or required by statute;
• single arbitrator or a panel.

5. What is "Mandatory Mediation"?
The phrase "mandatory mediation" appears to be a contradiction in terms since mediation is generally, by definition, a voluntary process. "Mandatory" pertains to the referral to mediation. Once at the mediation session and resolution reached by the parties is still done so on a voluntary or consensual basis. One such mandatory mediation scheme is the Ontario Mandatory Mediation Program (OMMP). For more information on the OMMP, click Mandatory Mediation or the Office of the Attorney General at http://www.attorneygeneral.jus.gov.on.ca/html/SERV/sermed.htm

6. What should I look for in a mediator?
Education: University degrees in the fields of business, law, social work, and/or psychology are the most common educational background.

Mediators should also have continuing education in the field of mediation and alternative dispute resolution.

Experience: Although it may be useful for a mediator to have expertise in the subject area of a dispute, it is more important the she/he have the practical experience of facilitating between disputing parties in a mediation setting. Service on certain mediation rosters may provide evidence of experience, however roster membership may be a misleading indicator of experience since many mediation rosters are infrequently used.

Personality: Even the most qualified mediators on paper (credentials and experience) may be poor facilitators. A good mediator is someone who can create an atmosphere conducive to cooperation and voluntary agreement. In dealing with the parties, the mediator should be patient, understanding and an excellent listener. In managing the process, the mediator should be creative, flexible/firm (as appropriate) and inspire the confidence of the parties.

Professional Certification: The only nationally recognized designation for general mediators is that of CHARTERED MEDIATOR (C.Med.) granted by the ADR Institute of Canada. For more information on the C.Med. requirements and application process, see the ADR Institute of Canada web site found at http://www.adrcanada.ca/education/mediator.html#membership

ProfessionalAssociations: In Ontario, the most notable associations for mediators is the ADR Institute of Ontario and the ADR Section of the Ontario Bar Association.

7. How long does mediation take?
A mediation session can take place at a date as early as can be agreed upon between the parties. Depending on the nature of the dispute, it is generally advisable to allow at least 3 hours for the first session. Some mediations resolve in the first session in less than 3 hours. Other disputes require multiple sessions to come to an agreement. The process is flexible and is subject to the wishes of the parties. If any party believes that the mediation is not productive, they may choose to terminate the mediation at any time.

8. Do I need a lawyer for mediation?
Although it is not necessary to have a lawyer present at the mediation session, it is usually advisable and recommended by the mediator that the parties have independent legal advice prior to entering a final agreement. When the parties attend the mediation session without their legal counsel, it may be wise to have their lawyers available by telephone should some legal issues arise. Lawyers are often involved after the mediation session is completed to draft the details of terms that were agreed upon at the session. Lawyers may be needed depending on the nature of the dispute. For interpersonal dispute involving little if any legal issues, retaining a lawyer may not be necessary at all. In other matters, it may be useful for the parties to attend the first session without lawyers and the final session with lawyers. The process is generally flexible. For mediations conducted under the Ontario Mandatory Mediation Program, the attendance of lawyers at the mediation session is required under Rule 24.1.

9. How much does mediation cost?
Mediation costs can generally be grouped into three categories: i) mediator fees, ii) other mediation associated expenses, and iii) expenses incurred by the parties.

Mediator's fees generally consist an hourly and/or daily rate for preparation, administration and the mediation session(s). Hourly rates can range from $50 to $600 per hour and daily rates can be in the range of $500 to $5,000 per day. Most mediators have cancellation fees as well. In addition to fees, there is likely to be additional costs for the mediation facility. Many mediators also charge the parties for travel time, and travel expenses such as transportation, meals and accommodation. The parties may retain lawyers, or expert witnesses. The parties may also have costs for expert reports or professional appraisals.

10. Who pays the costs of mediation?
The mediator's fees and expenses are generally split evenly between the parties unless agreed otherwise. If the parties retain lawyers or other outside professionals, the parties themselves generally assume such costs.