Thinking about mediation? There are many misconceptions and misunderstandings that can be a barrier to mediation. And many of them are myths! In my practice as counsel and a mediator, here are five common myths I hear regularly:
1. Agreeing to mediation is “a sign of weakness.”
It is not a sign of weakness to agree to mediate! No matter how strong your case is (as to the facts, the law, or the intensity of your emotions), a settlement in which you had a say is always better than a decision made by a judge months and months down the road, with piling legal fees. There are also mediations called on one party to the other via a Notice to Mediate. In that case, not attending a mediation has procedural consequences for your court case.
2. Mediations are only about money.
They can be about money, but most mediations are about more than that. There is no denying that some mediations can feel very transactional and can focus solely on an exchange of money offers. However, many meditations are truly transformative for those in attendance. Mediations of workplace conflict between colleagues make a significant difference to those involved, and they seldom include money exchanges.
3. What I say at a mediation might be used against me.
Not so! Discussions during mediation are confidential and the parties cannot rely on their exchanges further down the road as evidence of liability. The mediator will ask the parties to agree to confidentiality in the agreement to mediate.
4. The mediator might not think I have a good case.
The mediator will be a facilitator for the parties to reach a mutually agreed on settlement. Some mediators can assist the parties with an evaluation of the strength or weakness of their case. If the mediator is an expert in the area of the law, an evaluation of the parties’ case maybe very useful to assess risk and best and worst alternatives to a settlement. Yet, the mediator is not a judge and does not provide legal advice or make any decisions.
5. I have to sit in a room with the other side.
Not necessarily. Mediations can also take place in two different rooms (either physical rooms, or zoom rooms), with the mediator “shuttling” back and forth between the two rooms. A trauma-informed mediator will fully assess the best format with the parties in pre-mediation calls.
Thinking about mediation? Forte Workplace Law has a growing mediation practice. Contact us for details on our offerings and availability: [email protected] or call us 604-535-7063. This blog is not intended to serve as legal advice, and only provides general information.
Catalina Rodriguez is a workplace investigator, mediator, and counsel to both employers and employees.
This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].
