Human Rights Legal Support Centre

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What Do I Need to Know About Mediation?

This is general information only. It is not legal advice about your situation. This publication is not a substitute for a lawyer’s research, analysis and judgment.

  1. Where does the Tribunal schedule mediations?
  2. Do I have to go to mediation?
  3. How does mediation get scheduled?
  4. How long does it take to get a date for mediation?
  5. What if I cannot go on the date set for mediation?
  6. How do I request a new date for mediation?
  7. What if I need accommodation from the Tribunal?
  8. Who runs the mediation?
  9. Do I have to pay for mediation?
  10. Do I need a lawyer or paralegal to represent me?
  11. How does mediation work?
  12. What does the mediator do?
  13. What if I do not want to be in the same room with the Respondent in the application?
  14. Will it look bad if I decide that the mediation is not working and I want a hearing?
  15. What if I want to tell something to the mediator that I don't want the Respondent to know about?
  16. How many applications are settled through mediation?
  17. Is the mediation confidential?
  18. Can my friend come with me to support me?
  19. If I am represented by a lawyer or paralegal, does that mean I can’t say anything?
  20. What does a settlement agreement look like?
  21. If the mediation does not work out, when will my hearing be?

Introduction

Everyone who submits an application to the Human Rights Tribunal of Ontario (Tribunal) is asked if they want to participate in mediation to try to resolve the human rights issue. Where you (the Applicant) and the person, organization or company who will be responding to your application (the Respondent) agree, the Tribunal will schedule a mediation session.

Mediation is an opportunity for you and the Respondent to sit down and try to settle your application before it goes to a hearing. Any settlement must be accepted by both you and the Respondent. If the mediation works, you will all sign an agreement and the Tribunal will issue an order saying the matter has been resolved and will close the file.


Where does the Tribunal schedule mediations?

The Tribunal holds mediations and hearings in: Toronto, Kingston, London, North Bay, Ottawa, Sarnia, Sault Ste. Marie, Sudbury, Timmins, Thunder Bay and Windsor.

The Tribunal may hold hearings in locations other than the ones listed above to accommodate Ontario Human Rights Code (Code)-related needs or other special needs of the parties or their witnesses. Any request for a change in location should be in writing and made to the Tribunal's Registrar as soon as possible. For contact information about the Tribunal’s Registrar you can visit the Tribunal’s website at HRTO contact information.


Do I have to go to mediation?

No. Mediation is voluntary. If you do not attend mediation or if you cannot come to an agreement during mediation, a hearing will be scheduled.


How does mediation get scheduled?

Where both parties have agreed to participate in mediation, the Tribunal will generally issue a Notice of Mediation. The Notice of Mediation will indicate the date, location and time of the mediation.

If you or the Respondent does not indicate a willingness to participate in mediation, the Tribunal will still determine whether mediation may offer an opportunity to resolve the application. If so, the Tribunal will contact you and the Respondent to discuss the possibility of mediation. The decision to mediate remains voluntary.


How long does it take to get a date for mediation?

The Tribunal tries to schedule mediations within six (6) months of a completed application having been accepted. In addition, the Tribunal attempts to schedule hearings to be completed within one (1) year of the application having been accepted, but complicated hearings may require a longer time to complete.


What if I cannot go on the date set for mediation?

The Notice of Mediation tells you about how to reschedule a mediation if you cannot attend on the date set by the Tribunal. The Tribunal will reschedule a mediation hearing where a party or their representative is unavailable for a valid reason (such as being out of the province or country, a previously arranged appointment that cannot be changed, or a previously scheduled court or tribunal appearance). In general, mediations will not be rescheduled merely because the date is inconvenient for the parties or their representatives.


How do I request a new date for mediation?

If you are unavailable, you must contact the Tribunal Registrar, by phone, fax or email, within five (5) days of receiving the Notice of Mediation and provide five (5) alternative dates for the mediation.

If you are requesting a new date after the date set out in the Notice of Mediation, the five alternative dates must fall between eight (8) and twelve (12) weeks after the date of the Notice of Mediation. The Tribunal will contact the other parties with the proposed alternative dates. If the parties are unable to agree on an alternative date, the Tribunal may set the date for mediation without the parties’ agreement.

(If you are requesting a new date before the date set out in the Notice of Mediation, it is your responsibility to communicate with the Respondent and agree on dates. Once you have done this you must contact the Tribunal’s Registrar with the proposed dates. The Tribunal will consider your request.)


What if I need accommodation from the Tribunal?

If you need accommodation (meaning special needs because of your disability or religion, for instance) from the Tribunal, you should contact the Tribunal before your mediation date.

For example, if you need a translator or an interpreter to be able to participate in the mediation, you should call and write to the Tribunal. The Tribunal has also issued a Practice Direction on Language Interpretation Services which is available on the Tribunal website at Practice Directions or by phone.

For more information about accommodation, the Tribunal has a Policy on Accessibility and Accommodation available on the Internet in their policies section. The Tribunal also has accessible formats including Braille, audio and large print.


Who runs the mediation?

A Tribunal member will run the mediation. All the Tribunal mediators are also Tribunal adjudicators – they run both hearings and mediations. Tribunal members are human rights experts.


Do I have to pay for mediation?

No. As with all of the Tribunal’s services, the mediation is free.


Do I need a lawyer or paralegal to represent me?

No. Mediation at the Tribunal has been designed for people who do not have a lawyer. Many Applicants participate in mediation at the Tribunal without a lawyer. This is known as “self-representation”.

If you choose to have representation, you may be represented by a lawyer or paralegal licensed by the Law Society of Upper Canada (LSUC). You may also be represented by an unlicensed person if that person falls within a category the LSUC has exempted from its licensing requirements.

The exemptions allow an unpaid friend or family member, an employee or volunteer from a trade union, and students, volunteers and employees of Legal Aid clinics, among others, to act as a representative. See the LSUC’s website for a complete list of the approved exemptions.


How does mediation work?

Unless you have specifically stated that you do not want to be in the same room as the Respondent, you will probably all start out in the same room with the mediator.

By way of introduction, the mediator will explain the general process to you, including that the process is voluntary and confidential. The mediator will also let you know that you should tell him or her if you need a break from the mediation.

Then the mediator will usually explain their mediation plan and make sure that this is agreeable to both of you. For example, the mediator could say: “I plan to spend 45 minutes with the Applicant, than 45 minutes with the Respondent and see where we get to at that point. If we need to go back and forth again I will probably spend a shorter amount of time with each of you again.”

The mediator will probably begin by reviewing the application with you and the Respondent together before splitting you into two separate rooms. Sometimes the mediator will ask you or the Respondent to clarify some things on the application or response.

Then the mediator will usually ask you whether the plan makes sense to both of you and ask if you have any questions or comments.

You will have a chance to tell the Tribunal mediator in private what happened to you and what you want to see done about it. The mediator will ask you and the Respondent questions to help clarify what would be a fair resolution of the matter. You will also have plenty of time to think about whether you are ready to sign an agreement.


What does the mediator do?

The mediator will consider what you and the Respondent have said and will look at any documents provided. The mediator will occasionally make suggestions about how to move ahead. For instance, the mediator might say to you: “Your employer is not willing to say they will fire the employee who did this to you, but they are willing to make sure that the employee and all the others at the company get human rights training, and they are willing to give you money for pain and suffering. Would you be willing to consider that?”

The mediator can also clarify human rights law. For instance, the mediator can explain to your employer the nature of its duties and responsibilities under the Code. The mediator may also be able to help you understand what your rights are and any limitations on your rights that may affect your application.


What if I do not want to be in the same room with the Respondent in the Application?

You should ask the Tribunal in advance of your mediation date and explain why you do not want to be in the same room with the Respondent. A request will usually mean that, from the start of the mediation, you will be in separate rooms. The mediator will go back and forth to each room, trying to communicate positions and to assist both sides to reach a mutually- agreeable resolution.


Will it look bad if I decide that the mediation is not working and I want a hearing?

No. You have a right to a hearing at the Tribunal. If you are not satisfied with the settlement that is being offered to you by the Respondent and the Respondent will not change their mind, then a hearing will have to be scheduled. This does not mean that your hearing will be successful.


What if I want to tell something to the mediator that I don't want the Respondent to know about?

If there is something that you want to tell the mediator about privately, you should talk to them when you are alone in the room with them and explain that you want to tell them something that you don't want the Respondent to know.

The mediator will respect your privacy.


How many applications are settled through mediation?

Many applications to the Tribunal settle at the mediation stage of the proceedings. The Tribunal is hoping to settle about 70% of applications at mediation.


Is the mediation confidential?

Yes, the details of the mediation are confidential, unless you and the Respondent agree that you would like to both speak publicly about the result, for instance as a way to educate the public about human rights.

After the mediation is over (whether it is successful or not), the record of the mediation will not be shared with any person other than your mediator. If your mediation is unsuccessful you will have a different Tribunal member for your hearing. If your mediation is successful, you and the Respondent will sign an agreement, which may contain a confidentiality clause.


Can my friend come with me to support me?

Yes. Before the scheduled date, it would be best if you told your friend what to expect during the mediation day. You could ask them to read this information sheet.

Remember that if you have a friend attend the mediation, your friend also has to agree to keep the details of what happened in the mediation confidential.


If I am represented by a lawyer or paralegal, does that mean I can’t say anything?

No. You and your lawyer will want to work out a way to let each other know who will speak about the different issues that will come up in mediation. For example, if the Tribunal mediator asks how the discrimination made you feel, it is most appropriate for you to explain that directly yourself. On the other hand, if the mediator asks under what section of the Code the landlord’s rental application policies discriminate, this would be something your lawyer will want to answer.


What does a settlement agreement look like?

There is a standard settlement agreement used at the Tribunal that can be changed depending on what you and the Respondent might agree to.

A standard agreement says that you are not withdrawing your allegations about the discrimination and that the Respondent is not admitting to the discrimination. This does not mean that the discrimination did not take place - it simply means that the parties are not agreeing to put in writing that the Respondent is responsible.

Part of a settlement agreement might look like this:

THEREFORE THE PARTIES AGREE AS FOLLOWS:

  1. The Respondent, [name of company], shall pay the Applicant $ [Amount] in general damages to the Applicant [your name]
  2. The Respondent shall make sure that all employees receive human rights training by a professional organization with expertise in human rights. This training is to be completed by [insert date].
  3. The settlement does not constitute an admission of liability by the Respondent or withdrawal of the allegations by the Applicant.

If the mediation does not work out, when will my hearing be?

It depends on the Tribunal’s schedule and how flexible you and the Respondent are about your availability. In general, you could expect to have your hearing within about three (3) months.