mediation, employment law disputes

Mediation in Employment Law Disputes

Mediation is a process to settle disputes between parties with the help of a neutral party known as the mediator – this could be for employment law disputes as well as any other type of dispute. The mediator is different from a judge as he/she does not have the authority to decide the case or impose settlements. Nonetheless, the end result of a settlement agreement may save the parties both costs and time when it comes to settling a dispute. This article outlines what to expect, and the various considerations to keep in mind while going through the process.

What To Expect In a Mediation

Confidential process: The mediator will ask the parties to sign a confidentiality agreement before the process begins. This agreement is signed because mediation is a confidential process and thus the statements made by the parties during the process cannot be used against them at the trial.

Accommodation: Accommodation needs are considered by the mediator before the process begins. If a party is not able to travel to a specific location, where the mediation will be held, then a request to the relevant court/tribunal can be sent to either request an alternate location, or an alternate form of hearing as to allow the individual to participate. If there are any other particular accommodations regarding any health issues or others e.g. translator or interpreter, the mediator needs to be made aware of these accommodation requests as well prior to the mediation.

Self-representation: The parties may choose to represent themselves at mediation, but it is advisable that a lawyer or legal professional is consulted in order to ensure that all of a party’s best interests are being considered.

Preparing: It is important to keep in mind that a mediation does not always result in a perfect outcome for both parties, and as such, parties should understand in advance what they are willing to settle on, and what items are non-negotiable. This will assist in both negotiations, and when making a decision on an offer to settle.

Documents: All parties should prepare and gather all relevant documents before going for mediation. The parties have to prepare their mediation brief, with relevant issues. The documents that are typically relevant to a mediation go to the issues that are found in the mediation brief.

In a Human Right Tribunal Ontario mediation, parties should bring the application, response (if any), relevant medical documents (if the claim is for disability), list of witnesses, email or text correspondence (if harassment or discriminatory conduct), and any other relevant documents that they will be relying on.

In civil mediations and the employment law dispute context, parties should bring their claim, defence (if any), list of witnesses, employment and termination letter, paystubs, financial statements, and any other relevant documentation.

It is essential to bring the original copies of the documents for the mediator while copies can be given to the other party.

Process: Before the commencement of the process, a party may make a request to the mediator for the parties to be seated in different rooms from one another. The parties then are typically asked to provide their opening statements, if a party is represented by a legal professional, then they will speak on behalf of the party. The mediator will then give each party a chance to explain their side of the case. The parties will be strictly asked to not intervene when the other is speaking, even if they don’t agree with the facts. The mediator cannot give advice during a mediation, but can provide information in order for the parties to understand the process.

Settlement: As the mediator is a neutral party, he/she cannot impose any settlement, but his/her aim is to get a settlement in favour of both the parties. The mediator will shuffle between the two rooms and decide upon a list of possible settlements and he/she will then convey the list of possible outcomes to both parties. There is time provided for the parties to discuss and decide with their counsel if an offer is favourable or not. If the parties cannot agree to a settlement, the matter is then usually sent to trial.

Takeaways

Employment law disputes could often be resolved quickly through mediations as they are often less costly and time-consuming than a full trial. In addition, it provides the parties with some control over the process, where they are negotiating and deciding on offers for themselves, not a third party that does it for them.

While a party can self-represent at a mediation, a legal professional may have the experience and knowledge to navigate the particular matter in a way that is in the best interest of the party, keeping all relevant issues considered.

The selection of a mediatior is an important aspect of a successful mediation. Both counsel should agree on a mediator – often selected either through a referral or from the ADR Institute of Ontario.

Contact Us

If you have an upcoming mediation or are wondering whether mediation is right for you in your matter, our team of experienced legal professionals at Achkar Law can help. Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.

If you are a small or medium-sized company looking for full-service support, visit our CLO program page for our strategic solutions.

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Disclaimer: This blog is not intended to serve as, or should be construed as legal advice, and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call 1-(800)771-7882, or email [email protected].