Note: The original Guide to Mediation is in a comic book format. For that reason, dialogue is preceded by a note in brackets that explains who is talking to whom. For example: [Mediator in response to Party]:
As an applicant, you have filed an application with the Human Rights Tribunal of Ontario (HRTO), claiming that you have experienced discrimination, harassment, or reprisal as prohibited by the Ontario Human Rights Code.
As a respondent, you are answering the applicant's claim that you have infringed the Ontario Human Rights Code.
The HRTO encourages both applicants and respondents to try mediation as a method of resolving an application without a public hearing. Mediation is a negotiation between the parties where the parties work with an HRTO mediator to find a way to settle their case. It is a voluntary process. If no agreement is reached, there will still be a hearing.
Mediation is an important part of the dispute resolution process, but many people are not familiar with it since it is not something often discussed in the media.
While you may not see mediation on your favourite television show, it can offer benefits unavailable at a hearing using traditional adjudication.
Mediation is faster. It may take months to gather the documents and prepare witnesses for a hearing. Mediations are scheduled early in the HRTO process. If successful, the result is immediate – no waiting for a decision or approval.
In mediation, the parties are in control. Rather than allowing someone else to decide your case, you decide the outcome.
This provides you with the opportunity to minimize your risk. While the tribunal will decide the case at a hearing, in mediation, both parties can try to arrive at a mutually acceptable agreement.
Question: How does an HRTO mediation get set up?
Answer: Mediation requires the agreement of the parties. The application and response forms ask each party if they agree to mediation. If you don't mark the box agreeing to mediation, an HRTO adjudicator might contact you to discuss the process and see if you would consider mediation. If the parties do agree, then a mediation date will be scheduled. The HRTO will send you a Notice of Mediation giving you the date, time, and place.
Question: Tell me about the qualifications and work experience of mediators at the HRTO.
Answer: Well, HRTO mediators come from various backgrounds. We are not just mediators, but also adjudicators, so we all participate in both mediation and adjudication. These two roles are really important. An HRTO mediator may tell you how they would think about the case as an adjudicator including possible strengths and weaknesses. This can help you decide what to do. All our adjudicators are appointed to the HRTO by the government following a competitive process that includes a detailed interview, and testing. Once at the HRTO, we receive further training.
Question: Is mediation a common practice today?
Answer: Yes. As it turns out, mediation is used to resolve way more disputes than adjudication. People generally find that resolving their disputes through an agreement is better, as it avoids risk. It also avoids a public hearing - which takes time and can cause stress.
Question: What are other reasons parties should try mediation before a hearing?
Answer: A key value at HRTO is that everyone has the option of going to a hearing. Many people decide to give mediation a chance because it gives them more control and they may be able to craft a more creative solution. Parties who settle at mediation avoid leaving their dispute in the hands of someone who wasn't there, and who only gets the information through evidence at a hearing.
Question: So would you say that people generally find mediation to be less stressful?
Answer: I think mediations and hearings can both be stressful, but a hearing requires more preparation and the decision is not made right away. You're in a more formal situation in a hearing. You and your witnesses will be cross-examined. We talk to people about this in mediation so that they are aware of what a hearing is really like.
Question: What kinds of things can applicants and respondents do in preparation for mediation?
Answer: What's really key is to think about what's important to you. Think about the big picture of your case - what do you want the mediator and the other side to understand about your side of the story? If you are the applicant, why do you believe there was discrimination? If you're the respondent, why do you say there wasn't, or that you have a defence? Then think about the other side's case and what they may have to say. Finally, remember that mediation is about being prepared to compromise in order to come to a mutually acceptable agreement. We also encourage you to think about ways you would be prepared to resolve the case. Do you know how cases with facts similar to yours were decided by the HRTO? You can research this using the HRTO's decisions. The HRTO's decisions can be found at http://www.canlii.org
Question: How are parties able to have more control and achieve more creative solutions at a mediation compared to at a hearing?
Answer: Creative settlements happen all the time. For example, the majority of our applications arise in the social area of employment. I have seen people agree on the language of the letter confirming employment or a letter of reference. Other ideas might include donations to a charity or even an apology from the respondent to the applicant.
Question: Does it help to go into a mediation with a certain mindset?
Answer: I think so. Obviously the purpose of mediation is to help people move from a dispute towards a resolution that both people can live with. No one will ever come out of a mediation getting everything they want. Mediation is by definition a compromise. So, in the end, the best way to get ready for mediation is by reading the rest of this guide so that you understand the process and come to the mediation with an open mind about settlement.
The HRTO holds mediations in 13 regional hearing centres throughout the province. The busiest is 655 Bay St. in Toronto.
Outside Toronto, mediations may take place in another tribunal's office, a hotel, a government building, or some other location.
The 13 HRTO Regional Hearing Centres are: Thunder Bay, Timmins, North Bay, Sudbury, Sault Ste. Marie, London, Sarnia, Windsor, St. Catharines, Hamilton, Toronto, Kingston, and Ottawa.
At 655 Bay in Toronto, the HRTO is located on the 14th floor, in a space designed specifically to accommodate mediations and hearings.
If you need food or drink, there is a coffee shop to the right of the lobby.
The sliding glass doors of the fourteenth floor lead to a reception area. Please check in with the front counter when you arrive for your mediation.
The following shows what is likely to happen during mediation. However, just as each case is different, your mediation could proceed slightly differently.
Each mediation room is set up in a similar manner:
There are highly accessible washrooms down the hallway. Feel free to let the mediator know whenever you need to take a break during the mediation.
Mediators may start the mediation by meeting with the applicants and respondents in separate rooms, or in a joint meeting. If you begin the mediation together, the mediator will deliver a general introduction of the mediation process to both parties at once.
Separate break-out rooms are usually provided for each party. Where possible, these rooms will be separated by at least one other room so the parties will not overhear each other's private conversations.
If you are uncomfortable being in the same room with the other party, tell the HRTO in advance (or the mediator on the day of), and separate rooms will be arranged.
Even parties who start in the same room may separate into break-out rooms for the duration of the mediation. This can help people have frank discussions with the mediator and with each other.
The confidentiality agreement should be signed before the beginning of a mediation. You can send it back to the HRTO before the day of the mediation, or bring the signed copy to the mediation. The mediation will not go ahead until the agreement is signed.
After the introductions, the mediator may begin by discussing the application and its issues with both parties
As the mediator reviews your case with you, this can be your chance for you to make sure that the mediator understands your perspective on what happened.
[Party speaks to Mediator]: "Yes, I wanted to add that... And I wanted to make sure you knew that ..."
[Mediator speaks to Party]: "Yes, absolutely. I hear what you are saying ..."
[Mediator speaks to Party]: "Well, this is how I think an HRTO adjudicator might look at your case..."
[Mediator speaks to Party]: "There is a considerable risk involved for you in these areas of your case..."
[Party to Mediator]: "Based on the range of what the HRTO might award if the claim is allowed, what do I want to offer the other side?"
[Party to Mediator]: "I don't want to have to go to a hearing that I might not win ..."
[Mediator to Party]: "Do you have an offer that you would like to present to the other party?"
[Party to Mediator]: "I am not prepared to agree to all the conditions of that offer"
[Mediator in response to Party]: "It has been very difficult for the other party to get to this point and they may not be willing to go further without a little compromise."
[Mediator to Party]: "Would you reconsider your position? Your case has a good chance of settling..."
1. Trust the Mediator
2. Be Aware of Your Emotions
3. It's not Just the Money
4. The Mediator is not your Lawyer
[Mediator to Applicant]: "Well I cannot tell you what to do ... however; I can tell you that I think your case looks ..."
5. The Mediator is not the Adjudicator
[Mediator to Party]: "This is why the other party feels that way ..."
6. The Role of Confidentiality
[Someone asks Party]: "How did the mediation go for you?"
[Party response to person]: "Well, I can't tell you any details, but I can tell you that we were able to settle."