December 10, 2010
EVALUATIVE MEDIATION AT THE
CANADIAN HUMAN RIGHTS TRIBUNAL
Parties to a proceeding before the Tribunal have the option of trying to resolve their case through evaluative mediation. This document is intended to explain the evaluative mediation process used by the Tribunal, to assist parties in deciding whether or not they wish to participate in evaluative mediation, and to help them prepare for evaluative mediation.
What is evaluative mediation?
Evaluative mediation is a voluntary process offered by the Canadian Human Rights Tribunal to allow parties to human rights complaints to explore settlement possibilities in an informal environment.
The Tribunal offers mediation at two steps of the process. The first is an evaluative mediation that takes place at the beginning of the process. During an evaluative mediation the Tribunal Member will evaluate the relative strengths and weaknesses of the positions advanced by the parties and may provide the parties with a non-binding opinion as to the probable outcome of the inquiry.
The second is a post-disclosure evaluative mediation that is offered approximately two weeks prior to the hearing. During a post-disclosure evaluative mediation, the Tribunal Member will hear the positions of the parties and render a non-binding opinion as to the probable outcome of the proceeding. The Tribunal Member may also join issues between the parties in order to expedite the hearing process.
If resolution is not reached on any or all issues, the Tribunal Member shall make a direction setting out the issues that have not been resolved and giving such directions as he or she considers necessary for their adjudication.
How does evaluative mediation work?
In evaluative mediation, the parties, including the Canadian Human Rights Commission, together with their lawyers (if lawyers are involved) meet with a mediator trained to assist in settling disputes. The mediator will usually meet with all of parties and their counsel in a joint session, although in some circumstances, the mediator may choose to start by meeting separately with each of the parties. In the initial session, the mediator will explain the evaluative mediation process and give each party an opportunity to explain his or her views about the issues in dispute. There is likely to be discussions and questions involving the mediator and the parties. In joint sessions, parties will be able to discuss the issues directly with the opposing side.
Where the evaluative mediation starts with a joint session, and where it is appropriate to do so, the mediator may caucus individually with each party. This allows the mediator and the parties to explore more fully the needs and interests underlying their stated positions. In caucus the mediator helps the parties to think about a range of potential options for settlement of all or some of the issues in dispute.
The mediator may conduct additional joint sessions to promote further discussions between the parties, and/or may continue to work with the parties in private caucuses. Where appropriate, the mediator may provide the parties with an assessment of the strength and weaknesses of the parties’ positions, based upon the information that has been provided to the mediator.
The mediator is there to facilitate negotiations between the parties, and has no power to impose a settlement.
Who are the mediators?
Mediators are members of the Canadian Human Rights Tribunal who, in addition to their expertise in human rights matters, have received specialized training in evaluative mediation techniques. They are neutral and impartial individuals and can assist the parties to a complaint in resolving their differences. A member of the Canadian Human Rights Tribunal who mediates a particular case will not hear the case, should it proceed to a hearing, nor will anything said to the mediator in the course of the evaluative mediation be communicated to the Tribunal member or members assigned to hear the case.
Where will the evaluative mediation take place?
The evaluative mediation will generally take place on neutral ground, at a location determined by the Tribunal. The mediation usually takes place in a formal hearing room or a conference room.
When will the evaluative mediation take place?
The Tribunal will try to schedule a evaluative mediation as soon after the case has been referred to the Tribunal as is practicable.
Will evaluative mediation delay the Tribunal hearing?
No. Hearing dates will be established by the Tribunal, and will ordinarily be set for the earliest available dates. Hearings will not be postponed in order to accommodate evaluative mediation.
How long will the evaluative mediation last?
A day is ordinarily set aside for each evaluative mediation. Additional time may be provided in appropriate cases.
Is the process confidential?
Discussions taking place during a evaluative mediation session are confidential, whether or not a settlement is reached. In the event that no agreement is reached, nothing said in the course of the evaluative mediation will be communicated to the Tribunal member or members subsequently assigned to hear the case. Before evaluative mediation can take place, all of the parties will be required to sign a document acknowledging that all information exchanged during evaluative mediation will be treated as strictly confidential by the parties and their representatives and cannot be used as evidence in a legal proceeding unless otherwise required by law. A copy of the Terms and Conditions of Evaluative mediation is found at Appendix 1.
What if I don’t want to try evaluative mediation?
Evaluative mediation at the Canadian Human Rights Tribunal is voluntary. That is, no one will be compelled to go to evaluative mediation if they do not want to do so.
How do I find out if the other parties want to try evaluative mediation?
Soon after the case is referred to the Tribunal by the Canadian Human Rights Commission, each of the parties will receive correspondence from the Tribunal Registry, asking, among other things, if the parties are interested in having the case mediated. If all of the parties are interested, the Tribunal will provide a mediator to assist the parties in arriving at a settlement of the complaint.
What do I do if I want to try evaluative mediation?
If all of the parties involved in your case express an interest in evaluative mediation, the Tribunal will then contact you in order to set up a time and place for the evaluative mediation, and a timetable for the exchange of evaluative mediation briefs.
A mediator will be assigned to the case. The mediator may contact you by telephone, in advance of the evaluative mediation session, in order to discuss matters such as who is going to be present at the evaluative mediation and what information should be provided to the mediator in advance of the evaluative mediation. The mediator may also want to confirm that those to be present at the evaluative mediation have the necessary authority to settle the case.
What information should I send to the mediator before the evaluative mediation?
Unless the mediator specifically requests additional information, you should send the mediator a brief written outline of the facts and issues in the case as you see them (10 pages maximum). The complainant should also indicate what remedies he/she is seeking. This information should be sent to the other parties and to the Tribunal at least three weeks before the evaluative mediation is scheduled to take place.
Can mediation be cancelled?
Upon review of the mediation briefs by the Tribunal, the Tribunal may defer or cancel the mediation if the briefs do not sufficiently address the issues raised and/or the remedies sought or proposed.
Who should attend the evaluative mediation?
For evaluative mediation to work, it is essential that the people attending the evaluative mediation session have the necessary authority to settle the case, either on their own behalf, or on behalf of the institutions that they represent.
It is up to you whether you bring a lawyer to the evaluative mediation session. If you do not have a lawyer, you may wish to be accompanied by a relative, advisor or friend.
The Canadian Human Rights Commission will usually have a lawyer present at a evaluative mediation. The lawyer for the Canadian Human Rights Commission does not represent the complainant, but rather represents the public interest.
Can I get legal advice before a settlement becomes final?
Yes. If you are not represented by a lawyer and an agreement is reached at the evaluative mediation, the settlement will not become final for seven days after the evaluative mediation. This will allow you to think things over and to get legal advice with respect to the settlement, if you wish to do so. You will be responsible for the cost of any legal advice or representation that you may receive.
Unless we are advised by you that you do not accept the settlement prior to the seven day deadline, the hearing will automatically be adjourned pending approval of the Minutes of Settlement by the Canadian Human Rights Commission.
What if I have special needs?
The Canadian Human Rights Tribunal will make every effort to accommodate the needs of persons with disabilities. If you wish to participate in the evaluative mediation process, and have special needs (such as the need for sign-language interpretation or wheelchair accessible facilities), you may advise the Registrar of the Canadian Human Rights Tribunal in order that the appropriate arrangements may be made.
What happens if we settle the case?
The Canadian Human Rights Act requires that any settlement agreed to by the parties prior to the start of the Tribunal hearing must be approved by the Commissioners of the Canadian Human Rights Commission. Accordingly, any agreement reached at an evaluative mediation session must be reduced in writing, signed by the parties or their solicitors and is subject to the approval of the Canadian Human Rights Commission. Commission approval is usually obtained within thirty days of the evaluative mediation.
If a settlement agreement is reached at the evaluative mediation session, and is approved by the Canadian Human Rights Commission, the Canadian Human Rights Tribunal will be notified and the Tribunal proceedings will be discontinued.
Can some of the parties to a complaint settle and not others?
Yes. In cases where complaints have been filed against more than one respondent, a complainant may settle with one respondent and not others. It is possible for the complainant and the respondent to settle the issues between them, without the participation of the Canadian Human Rights Commission. However, unless the settlement is approved by the Canadian Human Rights Commission, the matter may still proceed to a hearing.
In some cases, the Canadian Human Rights Commission may conclude that a settlement offer is sufficient to satisfy the public interest in the case. In such situations, if no agreement is reached, the Commission may decide not to participate further in the case, should it go on to a hearing
What happens if we do not settle the case?
If it is not possible to settle the case at evaluative mediation, an effort should be made during the evaluative mediation session to determine if there are any issues that can be resolved, or if agreement can be reached on any of the facts, so as to narrow the issues and potentially shorten the time required for the hearing.
Where no settlement is reached through evaluative mediation, the case will proceed to hearing on the dates previously established for the hearing.
If evaluative mediation does not succeed can we still settle the case?
Yes, it is open to the parties to resolve the issues between them at any time, without the assistance of the Tribunal, subject to the requirement that any settlement reached before the commencement of the hearing requires the approval of the Canadian Human Rights Commission.
If you have any other questions about the evaluative mediation process at the Canadian Human Rights Tribunal, please contact:
Jamie R. Robertson, CD
Canadian Human Rights Tribunal
160 Elgin Street - 11th floor
Ottawa ON K1A 1J4
Fax: (613) 995-3484
CANADIAN HUMAN RIGHTS TRIBUNAL
TERMS AND CONDITIONS OF EVALUATIVE MEDIATION
IN THE MATTER OF CHRT FILE NO. __________________
- and -
CANADIAN HUMAN RIGHTS COMMISSION
- and -
- I, the undersigned, ___________________________, hereby acknowledge that the parties have requested the assistance of a mediator from the Canadian Human Rights Tribunal whose only role is to assist the parties in settling the above-noted complaint. I acknowledge that the mediator is not acting as legal counsel for any of the parties to the evaluative mediation, and is not providing legal advice.
- All information exchanged during evaluative mediation will be treated as strictly confidential by the parties and their representatives and cannot be used as evidence in a legal proceeding unless otherwise required by law. I agree not to communicate to anyone other than the parties and their legal counsel/representatives any of the information exchanged, statements made or actions taken during the evaluative mediation.
- I understand, that for reporting and statistical purposes, the Canadian Human Rights Tribunal may refer to a generic description of any settlement reached in the evaluative mediation. Should a settlement be arrived at, the mediator will ask the parties to approve the wording of this generic description by initialling the draft text appearing in Schedule “A” to these Terms and Conditions.
- Waiver of claims and release of liability: In consideration of the Canadian Human Rights Tribunal providing the services of a mediator to me, to my client or to my principal, I hereby waive any and all claims against the Canadian Human Rights Tribunal, its members and employees, including the mediator, (referred to collectively below as “the CHRT organization”) arising from or connected, directly or indirectly, with my presence at, or participation in, the evaluative mediation of the above-noted complaint.
- Further to paragraph 4, I release the CHRT organization from any and all liability for any loss, damage, injury (physical or psychological) or expense that I may suffer or incur by reason of said presence or participation, due to any cause whatsoever, including negligence, on the part of the CHRT organization or other participants, or anyone else. I will indemnify and hold harmless the CHRT organization from any and all liability for loss, damage, injury (physical or psychological) or expense suffered or incurred by me or anyone else in connection with said presence or participation.
(Complainant, Respondent, Canadian Human Rights Commission)
At ______________, _____________, this _____ day of ___________, 201_ .
SCHEDULE “A” TO CHRT TERMS AND CONDITIONS OF EVALUATIVE MEDIATION
GENERIC DESCRIPTION OF SETTLEMENT: DRAFT TEXT
A complaint of discrimination on the ground(s) of ________ against a federally regulated entity/individual/government institution was settled. This complaint may have involved a ___ week hearing.