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.