Mediation is a dispute resolution process that many people choose or are required to participate in when they are involved in a legal dispute. In Saskatchewan, all civil lawsuits are required to participate in mediation once the claim and defence are filed. This mediation is provided through the province and is at no charge to the parties.
Since July 1, 2022 in Saskatchewan, all family law matters are also required to participate in some form of family dispute resolution before turning to the Court for assistance. This is not to be confused with mandatory mediation, as mediation is one of a number of dispute resolution processes that qualify as a family dispute resolution process. Other options include: arbitration, parenting coordination or collaborative law. While mediation is not mandatory in family law matters, many couples find themselves turning to mediation either as a preference in terms of process or to satisfy their family dispute resolution requirement.
What is mediation?
Mediation is an out of court dispute resolution process where the parties work with the assistance of a neutral professional (the mediator) to discuss, negotiate and try to resolve a dispute. The mediator’s role is to help facilitate discussions and identify areas for discussion. The mediator does not provide legal or financial advice or advocate for either party. A mediator may identify other professionals that could assist with resolving matters or facilitate transition to other professionals where legal or financial advice may be needed. The mediator does not make any decisions or control the outcome. Any resolution from mediation must be agreed to by the participants.
Where parties have legal counsel, sometimes their counsel will participate in mediation as well. Or, often, the parties will come to mediation without counsel and check in with their lawyers where advice or direction is needed. This allows participants to control their legal fees and utilize their lawyers when needed.
Mediation is designed to be flexible so there is no prescribed process. Generally, a mediator will meet with each participant separately in advance of the mediation to discuss any questions or concerns about the process and to better understand each person’s goals and concerns for mediation. The mediator will then coordinate a joint session where all participants and the mediator meet. Mediation can be held in person or virtually. There are also styles of mediation, such as shuttle mediation, where the mediator will go back and forth between participants. Part of the mediator’s role is to help create a process that is conducive to productive conversation.
Mediators are trained professionals, but each mediator will have their own style to mediation. Mediators are not required to also be lawyers; but some mediators are lawyers. It is important to choose a mediator that suits your needs, and whose knowledge and style is suited for your matter.
What are the benefits of mediation?
There are many benefits to mediation. First, mediation allows the participants to identify and focus on what is important to them – opposed to what the law deems relevant. It also allows the participants to come up with creative solutions that may better suit their needs than strict application of the law. This can be especially helpful to farming families where often there are generational goals regarding the farm, or the division of assets may impact the functionality of the farm going forward. Second, mediation can be utilized to gain a better understanding of both sides’ goals and concerns. Especially in family law matters where children are involved, disputes rarely “end”. As children grow and their needs change there will be the ongoing need to continue discussions. Mediation allows parents to focus on how to address those changing needs without resorting to a court application each time a dispute arises. Mediation can also be used to gather information that helps participants make an informed decision. Third, mediation allows the participants to create a confidential process that gives them more say and control over costs, timelines, etc.
It is important to remember that mediation is about compromise. A negotiated resolution is rarely going to be 100% in one participant’s favour. Both parties need to be willing to negotiate in good faith and be willing to compromise if resolution is going to be possible. If one person’s goal is to come to mediation to force the other side to give in to everything the other person wants, mediation is unlikely to work. Both sides need to be committed to looking for a mutually agreeable resolution.
How do the costs of mediation work?
The costs associated with mediation will vary based on the time and complexity of the issues and also the experience of the mediator. Each mediator will set their own fee structure or rate. Generally, the parties share the cost of the mediator (either equally or in some other proportionate). How mediation costs will be paid and shared is often one of the first questions the participants need to agree upon when the matter gets started.
Kimberly D. Visram
STEVENSON HOOD THORNTON BEAUBIER LLP
500 – 123 2nd Avenue South, Saskatoon, SK S7K 7E6
Telephone: 306-244-0132
Email: kvisram@shtb-law.com
Facebook: https://www.facebook.com/KimberlyVisramLegal/
The information in this article is not legal advice. We encourage you to consult with your legal advisor for advice specific to you.
This article was originally published in The Western Producer.