legal words
Mediation Without Tears
HAVING REASONABLE EXPECTATIONS AND A FLEXIBLE ATTITUDE WILL ALLOW
YOU TO GET THE MOST OUT OF THE MEDIATION PROCESS
By Michael P. Fitzgibbon
Positions can become entrenched
very quickly in employment disputes.
Although it might appear
that the judicial process can right
any perceived wrong allegedly committed
by the employer, in truth, the judicial
process is often inadequate in providing
justice to the parties in employment
cases.
We are, therefore, fortunate that most
employment disputes will settle – at some
point. A timely settlement generally serves
the interests of all concerned. Once positions
harden – which they often do following
service of the statement of claim (or other
process) – settlement usually comes at
a greater cost, emotionally and financially.
Mediation, while not a panacea, is well suited
to many – if not most – employment issues.
Mediation can arise in different contexts:
in civil litigation, under statutes
including the Human Rights Code, the
Labour Relations Act, 1995 and the
Employment Standards Act, 2000, and
before labour arbitrators under collective
agreements. Mediation can also be
used proactively as a litigation avoidance
strategy in order to head off potentially
costly and disruptive problems at an early
stage.
Here are some thoughts on how to use
mediation to maximum impact.
KNOW YOUR MEDIATOR
In many cases, a mediator is assigned to
the case without discussion with the parties
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(for example, in human rights and
employment standards cases). In other
cases, the parties, usually through counsel,
select the mediator.
Where the parties choose their mediator,
it’s important that they do so
strategically by considering the mediator’s
experience, personality, style and approach,
and match these to the particular
case and the individuals involved.
Some cases (and parties) require a mediator
who will act as a facilitator and who
will give the parties an opportunity to be
heard. In other cases, such an approach is
fatal because what is required is a mediator
who will “push” the parties to a settlement
in a more forceful way.
In the end, though, all mediators should:
■■ Be an expert in the area of the law
■■ Take the lead of the parties (and their
representatives)
HRPATODAY.CA ❚ MARCH/APRIL 2016 ❚ 15