conflict resolution and mediation services

..... Frequently Asked Questions .....

Q: What is Mediation?
A: Mediation is a process for handling conflict where the parties involved in a dispute meet with a neutral, third party mediator to discuss the issues at the heart of the dispute and attempt to reach a voluntary agreement to resolve it. This process is informal and non-adversarial, yet is conducted in a structured process led by a trained professional mediator.

Q: What is the role of a Mediator?
A: Mediators provide the following functions:

  • Help create a safe and neutral place to discuss a problem or dispute
  • Help parties listen to each other
  • Make sure each party gets a fair and full opportunity to present their side
  • Help build understanding of the issues which have caused the dispute
  • Help uncover issues underlying the dispute which may not have been articulated previously by the parties to the dispute
  • Help people come together to work on mutually beneficial solutions
  • Summarize and record any resulting agreement between the parties so they may refer to it in the future

Q: What does the Mediator do?
A: Mediators do the following:

  • Prepare both parties to become involved in a constructive, non-confrontational discussion
  • Lead the meeting
  • Help the parties clarify how they feel and what they want to say
  • Make sure the parties feel safe and have equal chances to speak and be heard
  • Provide professional and discrete facilitation to get the parties to communicate with each other

A: Mediators do NOT do the following:

  • Decide who is right or wrong
  • Solve the problem for the parties
  • Take sides
  • Give advice

Q: Is Mediation the same thing as Arbitration?
A: No. Arbitration is used in situations where the parties want to have a decision made for them by a neutral third party outside of the judicial court system. Facts and legal arguments are presented to the arbitrator who then renders a decision in favour of one party or the other. This is completely different from mediation. Constructive Mediations does not provide arbitration services.

Q: What kinds of conflicts or disputes are suitable for mediation? Is special knowledge required?
A: Virtually any conflict or dispute can be resolved through mediation, even if the mediator is not familiar with the technical aspects underlying the dispute. This is because the mediator does not perform the role of judge or legal advisor or technical evaluator for the dispute. The role of the mediator is simply to get the two sides talking and uncover unknown or undeclared concerns relating to the dispute. It is the disputing parties which agree on a resolution to the conflict - not the mediator. Consequently, the mediator does not require specialized technical knowledge relating to the dispute itself. Instead, the mediator needs to have highly specialized skills relating to the management and conduct of the mediation process itself.

Q: How do I know if mediation is right for me?
A: One of the most important factors in deciding whether a dispute is suitable for mediation is the willingness of the parties to participate. If mediation is attempted against the wishes of one of the parties then the process usually will not work. Participation is a key principle in mediation, but "participation" does not mean the parties are expected to compromise in order to reach an agreement. It simply means they are ready and willing to discuss their issues while showing the same courtesy to the other party. Another factor to consider is whether the parties have legal representation during the mediation. Legal representation is not required in order for the parties to participate in a mediation. However, if one party has legal representation in the mediation when the other party does not then it may not be fair to proceed if the unrepresented party feels disadvanted. Therefore, it is preferable that both parties either be represented by legal advisors or not.

Q: How much does mediation cost?
A: The typical cost of participating in a mediation is considered to be quite modest, especially when compared to the costs that could be incurred if the parties try to use lawyers to resolve their conflict. It is common for the parties to split the costs of the medation between themselves, thereby reducing their individual costs even further.

The initial consultation (usually 30 minutes) is free. This is used to determine if mediation is an appropriate method to attempt a resolution between the parties. An hourly fee of $150/hr is charged for the actual mediation, with the cost depending on the length of the mediation. Hourly charges are broken into 30 minute increments if full hours are not consumed. There is no charge for the meeting room or for incidental items used during the mediation. A final document preparation charge is also applied for a flat amount of $50 to cover the cost of compiling and writing the final agreement reached between the parties. A travelling charge of $0.37/km is charged if travel is required outside of Calgary, plus expenses as negotiated. For more specific information about our fees, please contact us directly.

For divorce proceedings, mediation fees may be covered by the Alberta government for certain people who qualify for this benefit. Please contact us to obtain more information so you can determine if you qualify for this benefit.

Q: How long does mediation take?
A: A mediation may be scheduled in as little as a few days if all the parties are available to participate, and depending upon the availability of a mediator. A mediation session usually lasts two to four hours. The parties usually meet privately with the mediator before the mediation, and then all parties attend the full session. There are typically several breaks throughout the session and opportunities for private meetings with the mediator and/or legal counsel. Many mediations are resolved in one meeting, but additional sessions may be scheduled by mutual agreement at the close of each session.

Q: Who participates in a mediation?
A: The participants are the actual parties involved in the dispute. There may be just two people or a large group or multiple parties of large groups. It is not necessary to bring witnesses because a mediation is not conducted like a court trial. If attorneys have been retained, they are welcome to attend the mediation to advise their clients. The most important thing is that participants should have full and absolute authority to settle the case at the mediation session. Having the real decision maker who has not participated in the mediation event but is contacted on the phone for approval during potential settlement discussions rarely results in a settlement because the decision maker lacks the full information provided during the meditiation.

Q: What materials should be brought to the mediation session?
A: The parties should bring any documents or materials that would be helpful in communicating issues and concerns to each other and to the mediator that are relevant to the dispute. Mediation is not a formal legal proceeding, so there is no need to establish official evidence for the record.

Q: How do I book a mediation?
A: Contact Kathy Hutchings at the numbers shown on the Contact Info. tab shown on the left side of this website.

Q: What are the qualifications of a mediator?
A: National and provincial standards have been established by various professional accrediting bodies to assess Canadian mediators and provide them with an arms-length method of confirming their knowledge and expertise. To ensure that your mediator has the appropriate qualifications, check to see if they have been accredited as a Chartered Mediator (C.Med) with the Alternative Dispute Resolution Institute of Canada. Also find out if your mediator is a member of the Alberta Arbitration and Mediation Society (AAMS). If your mediation relates to divorce, separation or custody procedings, you should determine if your mediator is a Registered Family Mediator (RFM) through the Alberta Family Mediation Society. Also ask your mediator if he/she is a member of Family Mediation Canada.

Q: What is the role of attorneys if a party brings them to a mediation?
A: Mediators work directly with the disputing parties who are expected to explain to each other in their own words the nature of the dispute and their side of the conflict. Mediation is not a formal legal proceeding and your lawyer does not do the speaking for you during the mediation. The mediation process involves getting each party to understand the perspective of the other party in the dispute, and the issues that are important to the other party. The discussion is not a legal debate about the merits of a particular position, or who is legally right or wrong. It is simply an attempt to see if both sides can reach a mutual settlement once they have explained their position and discussed potential ways to resolve the conflict. Therefore, the mediation is not the place for lawyers to debate points of law or the merit of a particular piece of evidence. However, attorneys are welcome to attend the mediation to advise their clients, clarify legal issues for their clients and help with crafting any agreements that arise from the mediation.

Q: Are mediated agreements binding?
A: At the conclusion of the mediation process the mediator usually composes a document which summarizes what was discussed and agreed upon during the mediation. This may include a list of any items not resolved during the mediation which the parties have decided to work out between themselves outside of the mediation. If the parties do not wish to craft a legally binding agreement between themselves then they may simply use this summary document as a reference for future use. It also reminds them of what was accomplished during the mediation. The parties do not need to sign this document. The parties may further request that the document specifically state that the results of the mediation are non-binding, non-enforceable and not admissable in any subsequent civil proceeding.

Although mediation itself has no legal binding per se, the parties may wish to make their mediated agreements binding by committing them to writing (usually with the help of the mediator or legal counsel for the parties) and then signing them, thus rendering a legally binding agreement. The agreement can also be made admissable in any subsequent civil proceeding. It is strongly advised that the parties seek legal advice before signing any such legally binding agreement developed during their mediation.

Constructive Mediations Inc. has no enforcement powers and does not participate in overseeing the performance of any agreement.

Q: Are mediations confidential? Can they be used against me later?
A: Mediations are confidential. To ensure that the information revealed during the mediation is kept confidential and to confirm that the parties agree not to attempt to require the mediator to give evidence at any future judicial proceeding, the mediator usually asks the parties to sign a formal confidentiality agreement prior to the mediation. This serves to protect the mediation process itself, since the parties know that whatever they say during the mediation is confidential and cannot be used against them later in a court of law. The purpose is to encourage them to fully engage in the mediation without holding back.

Judicial courts encourage parties to attempt to resolve their differences through non-legal processes such as mediation. The "without prejudice" privilege in common law denotes that when parties are using honest attempts to reach some type of settlement, any offers or admissions they make during negotiations cannot be used in a court of law. This applies to mediations even when a confidentiality agreement has not been signed. Accordingly, the results of a mediation are considered to be privileged information and cannot be used against you in court, especially when backed by a confidentiality agreement.

Of course, there are some limits to privacy and confidentiality. For example, if a mediation entails allegations of child abuse or certain criminal acts then a mediator may be required by law to disclose such information to the authorities.