Logo, Elaine Newman B.A., LL.B., LL.M.

(416) 618-4413
elaine@newmanarb.com
Toronto ON

Parties who have never participated in a mediation frequently ask the following questions of their lawyers, and of the Mediator:

Q: Where are mediations conducted?
Newman: The lawyers will agree on a location for the process. It is common, and economical, for counsel to host the process. Where that is not the preference of the parties, I will arrange for facilities in a neutral location.
Q: Will I have to be in the same room as the opposite party?
Newman:  No. Mediation can be conducted very effectively with the parties staying in separate rooms. If the parties’ lawyers need an opportunity for a joint session they will make that known. But where the parties prefer, they can remain in their own private space for the entire process. As your Mediator, I have no preference and no need for a joint session. We will leave this choice up to the lawyers.
Q: Will I have the chance to speak to the Mediator in confidence?
Newman: Yes. When I meet with each party in their separate rooms, the conversations that I have with them are private and confidential. I will only share information between the parties when I am clearly and expressly instructed to do so by the lawyers.
Q: What happens if I am uncertain about something?
Newman: Mediation is a process in which clear communication is important. If at any time you wish to take a break, or speak to your lawyer privately, just say so and we will take a time-out. You are entitled to have the confidential advice of your own lawyer whenever you wish.
Q: My lawyer has his own way of proceeding in mediation. To what extent do you enforce your preferences in the process?
Newman: I view the process as belonging to the parties, not to the Mediator. Therefore, I leave it to counsel to state their preferences, and will do my best to honour them.
Q: What documents do you require before the process? What are your requirements in a Mediation Brief?
Newman: I do not require extensive mediation briefs. Pleadings will do, and key documents.  These can be emailed to elaine@newmanarb.com.
Q: What can I expect of the process?
Newman: Mediation is an opportunity to discuss the history. We will talk about what happened, and what your position is in the dispute. Mediation is also an opportunity to move forward, and to that end we will discuss possible solutions to the dispute that will enable you to end the litigation. In order to have these conversations, I will meet privately with you and with the party opposite, and ask questions about both the history, and the future. You will have no conversations with me unless your lawyer is in the room.
Q: What is the Mediator’s role?
Newman: My job is to facilitate settlement discussions. You may hear my opinion on a point during our discussions, but my opinion, as Mediator, is not binding on the parties.
Q: Do I have to answer all of your questions?
Newman:  You are under no obligation to say anything that you prefer not to say. Your lawyer will be with you at all times, and will advise and instruct you.  This is not a courtroom or a hearing room, and you are free to consult with your lawyer at every stage of our work together.
Q: Will there be a record or transcript of the mediation?
Newman: No. Lawyers and parties are free to take notes, but there is no record of our conversation. The entire meeting is confidential, and remains within the four walls of the mediation process. Nothing that is said in the mediation can be repeated in a courtroom or hearing room, unless it is properly introduced as evidence in that trial or arbitration. I will not provide testimony about what was said in mediation, and my notes are not available to the Court or Arbitrator who may eventually hear the case.
Q: Can I bring someone with me to the mediation?
Newman: It can be helpful to have someone attend the mediation with you, but it is appropriate and courteous for your lawyer to advise the Mediator and the other lawyer that you intend to do so.
Q: What should I bring with me?
Newman: Your lawyer is the best person to answer that question. You may have records or documents that will be useful to the process, but it is important to ask that question when you are preparing for the mediation with your lawyer.
Q: What is your settlement rate?
Newman: The Rules of Conduct for Mediators prohibit the publication of one’s “success rate”.  Suffice it to say that the process works, most often, to put an end to the litigation, giving the parties greater control over an unpredictable outcome in court or arbitration.
A list of lawyers who are prepared to provide references appears at the References section of my website, www.newmanarb.com.
Q: What happens if we settle the case?
Newman: The lawyers will draft an agreement that includes the details of the settlement. The agreement includes a Release, in which the parties agree that all litigation between them is at an end. The law suit ends, and the agreement that results from our work together forms a final and binding contract.
Q: Are the mediation results public?
Newman: No. Although Court and Arbitration decisions are public, mediated agreements are not.  Most often, mediated agreements specifically state that they are completely private and confidential.
Q: What happens if we do not settle the case?
Newman: If the case is not settled, we end the mediation and the lawyers continue with the litigation process.  You are risking nothing by participating in the process. You do not lose your place in the litigation process, and you do not waive any of the rights you have in the lawsuit or grievance process. As your Mediator, I “disappear” from the law suit. In your mediation agreement, you agree that I will not be summonsed to provide testimony when your dispute comes on for trial or arbitration.
Q: Who pays the Mediator?
Newman: The parties are equally responsible for the mediator’s account, which they usually share 50-50.  There are situations in which one party, as part of the agreement, accepts responsibility for the entire account. Your lawyer will address this in your preparation for mediation, and in the process itself.
Q: What are the tax consequences of a settlement?
Newman: This is an important question that may have an impact on the value of a settlement payment or offer. Your lawyer (or accountant) will discuss this with you in your preparation for mediation. We will discuss general tax treatment of settlements in the process, although your Mediator will not be providing tax advice. 
Q: What if I have more questions?
Newman: I encourage Counsel to email any procedural questions to elaine@newmanarb.com, or call 416 – 618 – 4413.