How to prepare for the Mediation?

What is mediation?

Mediation is an opportunity for you and the other party (parties) to meet in person with a Mediator, to try to settle the conflict.  Mediation is voluntary, free and confidential.

A settlement from the mediation is a voluntary agreement to resolve the matter on specified terms.  Any settlement must be accepted by all parties.  If any agreement is reached, you will sign a document called the Memorandum of Understanding setting out the terms of the agreement.

Mediation is confidential.  

Anything said in a mediation and any offer to settle the conflict will be confidential and, where no agreement is reached, may not be used by one party against another in the same or any other proceedings.

It is essential to the mediation process that all parties trust that what they say in the mediation in order to try to settle the case is confidential and will not be used against them later in a Landlord and Tenant Board (LTB) hearing or other Court proceedings.  A party should feel free to make any statement of fact or suggest a fact in dispute may be true in the mediation without fear that it will be used.  Similarly, parties must be able to make and discuss offers to settle, without concern that the other party will raise those offers at a LTB hearing.

Furthermore, parties should be able to make written proposals to settle or draft proposed agreements.  If the mediation does not result in a complete settlement, the document should not be used by one party against another in a LTB hearing or other Court proceedings.

The Mediator will not communicate any information about the mediation and will not disclose any documents that are shared during the mediation.  However, Mediators may discuss the issues raised and offers of settlement in collegial discussions for professional development purposes without revealing the names of the parties or other specifics about a case that may reveal the names of the parties.

All the parties and their representatives (if any) who participate in mediation must sign a Confidentiality Agreement before the mediation will commence.

After the mediation is over (whether it is successful or not), the Mediator’s notes or record of the mediation will be destroyed.  Mediators cannot be compelled to give testimony or produce documents in a civil proceeding if the information came to their knowledge in the course of a mediation.  This means that a Mediator cannot be called to a hearing at the LTB or a Court to report what was said at a mediation session or in separate discussions with any of the parties.

However, in extraordinary cases, the evidence of a Mediator may be compelled in Court (such as at a criminal trial, where the public interests requires the evidence).  Mediators have an obligation to advise officials if any potential criminal act or intention is revealed.

If your mediation is successful, unless otherwise agreed upon by both parties, the terms of settlement in the Memorandum of Understanding (MoU) is to remain confidential.

The MoU is the property of the parties.  The York Region Housing Mediation Services® will keep a copy of the signed Memorandum of Understanding on record for 1 year.

Do I need a lawyer or paralegal at mediation?

No. It is not necessary for you to have a lawyer or paralegal represent you at mediation.  Mediation has been designed for people who do not have a lawyer.  Many participate in mediation without a lawyer.  This is known as “self-representation”.

Mediators cannot provide legal advice.  It is each parties’ responsibility to obtain individual information and advice on their legal rights and responsibilities.  Mediators will answer questions about the mediation procedure.

How can I get ready before my mediation?

Think about what you would like to achieve at mediation.

The purpose of the mediation is to resolve the case without the involvement of the Landlord and Tenant Board, where possible and where both parties are reasonable.  In order to have a successful mediation, you will need to participate in good faith and have a good understanding of what range of outcomes you would be willing to accept.

You should think about what your “best case” and “worst case” scenarios would be.  The best case is what you would be able to achieve by applying to the Landlord and Tenant Board.  The worst case would be getting nothing after going through a hearing and losing at the Landlord and Tenant Board.

Each party has the option to end the mediation at any time.  The mediators may also end the mediation if they decide it is not appropriate to continue.  A Mediator may terminate a mediation:

  • If one of the parties are being disrespectful and is refusing to follow the Mediator’s requests to act in a respectful manner.
  • If a party is badgering the other party or using inappropriate methods to obtain concessions.

Decide if you want to bring someone with you for support. 

Whether or not you have a lawyer or paralegal, you can bring a family member, friend or anyone else for personal support.  You should prepare that individual for the mediation.  Tell that person exactly what you want him or her to do during the day.  For example, you could say that you want him or her to signal to the Mediator that you are really upset and need a break.  If you decide to bring someone for personal support, please inform our Mediator(s) in advance of the mediation.

What can I expect on the day of mediation?

The Mediator will begin by explaining the process to all of the parties.

The following matters will be explained:

  • The role of the Mediator.
  • That the process is confidential. The Confidentiality Agreement must be signed by all parties.
  • That the process is voluntary.
  • All parties are expected to be respectful towards one another.
    • Refrain from interrupting each other, even if you disagree OR do not like what is being said;
    • Understand and appreciate that each of you has decided to participate with the intention of working together to resolve the conflict.
  • Answer questions as needed.

If mediation is successful, the Mediator may assist to prepare a written agreement based on the parties’ settlement.  Mediators may involve themselves in helping the parties to draft their agreement.  This helps to ensure that the parties understand their respective rights and responsibilities and promotes clear and objective wording of agreements between parties, especially in instances where one or both parties are not legally represented.