- Mediation is based on specific rules and processes.
- An impartial third, party (the mediator) is necessarily involved.
- The cost of mediation (such as the mediator's fees) are shared between you and the other party, unless otherwise agreed or ordered.
- Mediation may take place at one or more meetings lasting from one to several hours.
- You can attend the mediation sessions alone, or accompanied by a legal advisor or another person whose presence is considered useful.
- Mediation may take place before, during or after legal proceedings.
- Mediation may take place in a private office or on the premises of a public institution such as a court or community organization.
- You will determine, with the other party, the terms of a settlement that profides a satisfactory soluition to your problem.
- The mediation process is based on confidentiality.
Your role and responsibilities
You can only take part in the mediation process voluntarily.
If you decide to take part, you must undertake:
- to select the mediator jointly with the other party or parties, directly or through an outside body (professional order, specialized organization, court clerk, etc.);
- to share the cost of the mediator's services;
- to act transparently and cooperate in finding a solution to the problem;
- to respect the confidentiality of the process.
Role of the mediator
The mediator directs the mediation process.
As a result, the mediator:
- ensures that negotiations are balanced and fair;
- reduces the obstacles to communication;
- facilitates dialogue between you and the other party;
- helps both parties reach a voluntary settlement, in full knowledge of the facts;
- remains impartial and neutral;
- makes no decisions for the parties;
- respects the confidentiality of the process;
- may suggest that you consult a specialist, for example to obtain an independent legal opinion;
- may encourage you and the other party to obtain an independent legal opinion to finalize the settlement;
- may terminate the mediation, if necessary.
Civil mediation is available for:
- individuals in a dispute with other individuals;
- individuals in a dispute with enterprises;
- enterprises in a dispute with other enterprises.
Mediation may be used in various situations:
- disputes involving a succession;
- disputes involving a the performance of a service or the purchase of goods;
- disputes concerning a hidden defect;
- disputes concerning construction work undertaken by a contractor;
- disputes between partners, shareholders or work colleagues;
- disputes involving the use of a building or trademark;
Some costs may apply when this type of mediation is used:
- The mediator's fees are those generally charged by a professional, plus related costs (travel, room rental, etc.);
- Since the mediation process is generally quicker than court proceedings, it generally involves fewer billable hours;
- Lawyers' fees will be payable only if the parties are represented by a lawyer, at the parties' request, during the mediation process;
- It is possible that no witnesses' or experts' fees will be payable, depending on the type of mediation selected;
- The parties will save on court costs, except if they wish to have their agreement homologated by the court.
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Overview of the mediation process
The mediation process has several steps. The steps outlined here may vary slightly in practice, depending on the approach applied.
1 – Pre-mediation
The mediator may contact you and the other party, individually, to explain the mediation process. This step may take place by telephone.
A mediation agreement, setting out the mediation process and the duties of the mediator, should be drawn up. The mediator may do this at your request. The agreement must then be signed by you and the other party before or at the first mediation session.
2 - Mediation
In general, a mediation process* under the direction of a mediator has four main steps.
2.1 Introduction to the mediation process and timeline of events
You and the other party discuss the problem. You relate the events you have experienced.
2.2 Exploration of interests and needs
You seek to understand the underlying interests at the source of the problem. They determine the needs that must be met.
2.3 Review of options and negotiation of a solution
You and the other party seek ways to meet your needs. You agree on a solution that is fair and satisfactory for all parties.
2.4 Conclusion of mediation and settlement
You and the other party undertake to implement the solutions chosen to settle the current dispute and prevent any further problems in the future.
3 - Settlement
The mediator prepares a mediation report or a summary that includes the terms of the settlement, in other words the way or ways in which you and the other party have agreed to resolve your dispute.
You may consider that this document is sufficient. However, it has no legal value if you or the other party fails to comply with the terms of the settlement.
To give the settlement legal force and effect, in other words to make it binding, you must apply to the court to have it homologated. The application must include a draft agreement or settlement.
Since this new document is not identical to the mediation report, the services of a lawyer or notary may be needed to draft it.