Mediation Preparation & Process
Employment disputes are particularly well suited to mediation. The process allows the parties
to assess litigation risk, explore remedies that may not be available through a court or tribunal,
and resolve disputes before further legal costs and personal conflict accumulate.
The materials below address the mediation process from preparation through settlement,
including the role of the mediator, settlement privilege and confidentiality, Med/Arb,
and the practical consequences of refusing meaningful settlement efforts.
Understanding the Mediation Process
Mediation 101 for the Client
A practical introduction to employment mediation, including the selection and role of the
mediator, preparation for the mediation, exchange of relevant documents, minutes of settlement,
releases, reference letters, settlement allocations, EI repayment issues and confidentiality.
Mediation Preparation and Such
A broader discussion of mediation as a settlement vehicle and the practical preparation required
for an effective mediation. The article considers the value of early third-party review and the
particular challenges of more complicated employment disputes, including sexual-harassment cases.
Privilege & Confidentiality
Privilege, Without Prejudice, Confidentiality Issues and Such
A detailed examination of privilege in the mediation process. The article distinguishes
settlement privilege from contractual confidentiality and reviews the principles governing
legal advice privilege, litigation privilege and case-by-case privilege.
The Mediator’s Role
The Mediator’s Role re Defect in Pleading – or Minutes
What should a mediator do when one party appears to have overlooked an important legal or factual
issue? This article considers the tension between neutrality, fairness, evaluative mediation
and the objective of achieving settlement.
EI Clawback – Raise It or Not?
A practical follow-up to the discussion of the mediator’s role. The post considers whether a
mediator should intervene when the parties have apparently reached a settlement but neither side
has addressed the possible EI repayment consequences.
Mediation, Arbitration & Med/Arb
Sample Med Arb Agreement
A sample Med/Arb procedure under which the parties first attempt to resolve their dispute
through mediation and, if unsuccessful, proceed to final and binding arbitration.
Scholarly Review of Mediation & Arbitration
A reference to a paper published in the Alberta Law Review by Nayha Charya of
Dalhousie University’s Schulich School of Law, reviewing mediation and arbitration
across Canadian jurisdictions.
Real World Book on Employment Dispute Mediation
A practical reference to Barry Fisher’s employment-dispute mediation text for practitioners
involved in resolving employment disputes.
Why Mediation Matters
Why Mediation Matters: $300,000 Costs Award for a $16,000 Result
A striking illustration of the litigation risks associated with refusing meaningful settlement
efforts. The article considers the substantial cost consequences that may arise when a party
adopts an inflexible settlement position and examines mediation as a form of litigation-risk management.