Law Practice Essentials

Mediation is a process that allows parties to reach a mutually acceptable agreement with the assistance of an impartial third party, referred to as the mediator.

The mediator’s role in helping parties reach an agreement, and the type of participation agreement the mediator and parties sign, depend on the type of mediation they offer. Mediators who take a facilitative approach help to facilitate discussion, explore issues and options and craft a settlement, but they don’t typically make recommendations or express their views on how a court may resolve any part of the dispute. On the other hand, mediators who use an evaluative approach may provide their views on the strengths and weaknesses of each side, speculate how a court would resolve the dispute and make recommendations. Mediators may also implement components of the transformative approach and/or a blended approach that moves from facilitating to evaluating when necessary. There is no one right approach or style when it comes to conducting a mediation.

There is also a lot of variability in how a mediation may be conducted, depending on the parties and mediator involved. Meetings can involve just the parties or both the parties and their counsel. Meetings can include joint sessions where everyone is in the same room and/or caucuses where the parties are in separate rooms and talk through the mediator rather than directly with each other. Some mediators recommend frequent shorter meetings while others are proponents of lengthier meetings.

While a mediator may offer their opinion on the potential outcome of a matter, they do not have the authority to make a decision. The outcome must be determined by mutual agreement of the parties. The parties’ agreement is normally set out in a Memorandum of Understanding, and the parties are responsible for taking the necessary steps to ensure their agreement is formalized and legally binding.

Mediation is not a regulated profession, meaning anyone can call themselves a mediator, and the education and training requirements for mediators can vary widely across the province. Provincial organizations that publish information about their education requirements and roster of mediators include the ADR Institute of Alberta and Alberta Family Mediation Society.

Given the significant variability in education, experience, style and approach, it is important that you or your client ask questions in each of these areas before committing to a mediator to ensure everyone’s understanding and expectations align.