Are you thinking about using mediation to settle a conflict? Before going ahead, here are a few things you need to know.
What a mediator does
A mediator doesn’t make a decision on the conflict, give advice, legal opinions or provide therapy. Instead, a mediator helps people involved in a conflict find solutions that work for everyone.
Here are things a mediator can do:
- Help participants communicate and exchange information.
- Encourage participants to consider different sides of the conflict.
- Allow all participants to express their needs and points of view and listen to those of the other participants.
- Encourage participants’ cooperation to find possible solutions.
Some mediators are very active in suggesting solutions. Others take more of a back seat. You can choose a mediator based on whatever approach you prefer.
Mediation can be done in different ways. Often, mediators invite participants to their offices so they can sit down and talk about the problem. Mediation can also be done over the phone or Internet.
Who can be there?
The people having the conflict usually participate in the mediation sessions at the same time. So, the mediator and the other person involved in the conflict will be there.
Talk to your mediator if you want someone to accompany you. If everyone agrees, another person can go with you, like a friend, family member or lawyer.
But there are some exceptions. In family matters, for example, lawyers can’t take part in a client’s mediation sessions.
If mediation does not result in an agreement, what happens in mediation stays in mediation.
Participants must promise to respect the confidentiality of all discussions and all documents exchanged or written during mediation. This allows participants to negotiate more freely without being worried that what is said will be used as evidence in court.
Preparing for mediation
Before mediation begins, mediators usually contact the participants to explain their role and how the process works.
How you prepare depends on the mediator’s approach. It’s best to ask the mediator what you should do to prepare before mediation begins.
Before starting mediation, you can also meet with a lawyer or notary to learn more about your rights.
Keep in mind: The purpose of mediation isn’t to prove you’re right. For example, if you bring documents to the mediation session, you won’t be using them to convince the mediator of your position. Instead, you’ll have all the information you need to discuss the problem or to help you explain your point of view. It’s up to you and the other person to work together and find a solution.
If you reach an agreement
If the participants agree on a solution, they don’t necessarily have to write up an agreement. A simple handshake might be enough.
Participants can also decide to put their agreement in writing. A written agreement is an accurate summary of the discussions and helps prevent misunderstandings. Participants can write the agreement themselves. Sometimes the mediator writes it for them.
Participants can also talk to their lawyers before signing the agreement or ask their lawyers to help them write one.
Once the agreement is written, it can be “homologated.” This means that a judge approves the agreement, giving it the same value as a judge’s decision. This makes it easier to have the agreement respected if another conflict comes up.
If there’s no agreement
Sometimes people don’t reach an agreement, even with mediation. This is what they can do:
- Take a break for a while and go back to negotiations later.
- Take the case to court.
Even if you go to court, you can still try to negotiate an agreement and go back to mediation.
Important! Depending on your legal situation, the law sets a maximum time limit (called prescription) to claim your rights in court. Since mediation can be very quick or take more time depending on the case, find out about the time limits for filing a case in court so you don’t lose your rights while you’re in mediation.