Mediator and mediation process
The mediator directs the mediation process and ensures it proceeds smoothly.
For this purpose, the mediator:
- guides your discussions with the other party,
- 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;
- respects the confidentiality of the process;
- may suggest that you consult a lawyer to obtain a legal opinion;
- may terminate the mediation if necessary.
The mediator is neutral and impartial. The mediator makes no decisions on your behalf, or on behalf of the other party to the dispute. The mediator does not provide legal opinion or advice, does not impose solutions, and does not render a judgment to settle your dispute.
There are several steps in the mediation process. The steps presented here may vary in practice, depending on the approach selected.
At all stages in the process, you must:
- act with transparency;
- cooperate in the search for a solution to the problem;
- respect the confidentiality of the process.
1. Choice of mediator
The first step is for you and the other party to the dispute, jointly, to choose a mediator.
The name of a mediator may be suggested by you, or by the other party.
If neither you, nor the other party, know a mediator, you can ask for a list from a professional order, a specialized organization or a clerk at your local courthouse.
Finding a mediator
- Barreau du Québec
- Chambre des notaires du Québec
- Institut de médiation et d’arbitrage du Québec (IMAQ)
- Canadian Commercial Arbitration Centre
In general, a mediation process under the direction of a mediator has four steps.
2.1 Discussion of the problem
You discuss the problem with the other party.
You each relate the events you have experienced, from your own standpoint.
2.2 Exploration of interests and needs
You seek to understand the underlying interests at the source of the problem.
These interests will determine the needs that must be met.
You must make the other party aware of your interests.
2.3 Search for solutions, and negotiation
You and the other party seek ways to meet your needs.
You can propose solutions, and the other party can do the same.
Together, you negotiate an agreement that is fair and satisfactory for both parties.
2.4 Conclusion of mediation
The mediation process can end with, or without, an agreement between the parties.
If you agree
You must undertake to implement the solutions chosen to settle the current dispute and prevent any further problems in the future.
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. A court fee may also be payable.
If you fail to agree
You can attempt to resolve your dispute using another dispute prevention and resolution process, or you can take your case to court.