This is a follow up from my post dealing with the role of the mediator – should they keep quiet or speak up when dealing with an issue that has been missed by one party in the case. The apparent consensus is that the mediator should not interfere with the settlement process by raising such a point. I remain unconvinced.

Take this situation which arose in a recent mediation. The parties had arrived at an agreed sum to be paid, all terms being apparently set, with a general release and reference letter all in place.

However, neither side raised the issue of the EI clawback. The employer was perhaps aware of this issue and was comforted that the law did require the EI sum to be deducted by it and remitted. This would be a statutory obligation, similar to tax, and would not need to set out in the minutes. Perhaps raising the issue would have made the settlement less likely, I really had no idea.

Alternatively, the company was not then aware of this obligation. That said, it nonetheless may later come to know of this duty, when the moment had arrived to make the payment.

The plaintiff, I suspected, was not aware of this issue.

Once the deal was made and signed off, then it would be too late to seek any revisions to the minutes

Hence the question arises – is this an issue the mediator should raise ? Had this been a live issue, there could have been, in the proper context, negotiations to allocate funds to compensate for the loss of reinstatement, or to aggravated and/or punitive damages, or damages for reprisal, to reduce or eliminate the EI repayment.

I said nothing. I am not certain that this was the right decision.