Mediation

• Mediation provides a chance for you to settle a legal dispute directly with the other party, with a mediator’s assistance.
• Mediation is voluntary. It can only happen if you and the other parties agree to it.
• Mediation can take place in person, by videoconference or by telephone.
• There is no cost to you.
• The mediator is a skilled, neutral person that is appointed by the Tribunal. The mediator helps you negotiate with each other.
• The goal is to settle the complaint as quickly as possible. This can save you the time, effort and expense of going through a hearing. Even if mediation does not resolve the whole complaint, it can reduce the number of issues that have to be dealt with at a hearing.

If all the parties agree, they can opt to work with a Tribunal mediator at any point, right up until the hearing is over.

If mediation does not fully resolve the complaint, it moves into “case management”. This means the Tribunal schedules a hearing and everyone prepares for it. But the parties can still agree to try mediation again at any time—even during the hearing. 

• Mediation is the fastest and cheapest way to resolve a complaint. 
• Mediation is informal. There are no strict rules. 
• You may reduce the number of issues in the case. That means the hearing will be shorter and faster. 
• There is room for creativity.
• The parties have more control over the outcome.
• What is said in mediation stays confidential.
• Mediation could settle the case once and for all. A Tribunal decision could be sent to the Federal Court for review, and there could be even more appeals after that.
• The parties can agree to keep the details of their settlement confidential.

• The person who filed the complaint (the Complainant).
• The person or organization complained about (the Respondent).
• Your representative, such as a lawyer or paralegal, if applicable.
• If you so choose, a support person, such as a family member or friend.
• The Canadian Human Rights Commission, if they wish to participate. If the Commission takes part in the mediation session, it does not represent the Complainant or the Respondent. It represents the public interest. The Commission must approve any settlement reached without a hearing.
• The mediator assigned by the Tribunal. They will work with the parties and try to help resolve the complaint.

Everyone who attends must agree to keep what they hear confidential.
 

The mediator may be a Tribunal Member or an outside mediator hired by the Tribunal. In either case, the mediator is a professional trained in dispute resolution. They make sure that mediation takes place in an atmosphere of respect, honesty and trust.   

The mediator is not there to decide if there was discrimination. The mediator does not decide who is right or wrong. They are independent and neutral. This means they are not on anyone’s side. 

The mediator may share their thoughts about the strengths and weaknesses of your case. If you cannot settle the complaint, they can help you understand what might happen during the hearing process. 

Your mediator can also be a Tribunal Member. In almost all cases, if a Tribunal Member conducts the mediation, they do not go on to hear the case. This allows you to speak freely during mediation, without worrying that what you say will be used during the hearing. If your complaint is not resolved through mediation, a different Tribunal member will review your complaint at a hearing.  

If this is the case, you and the other parties can ask the new Tribunal Member in charge of your hearing to act as a mediator on some or all of the issues. This is called “mediation-adjudication”. It can also occur when all the parties agree to have their case heard by the Tribunal Member who originally acted as their mediator. 

In both situations, the parties have to promise not to ask for a new Tribunal Member if mediation fails. At the hearing, the Tribunal Member must make a decision based only on the evidence and arguments presented there. 

Mediation-adjudication can only occur if the mediator is also a Tribunal Member. 

Yes. Mediation is a confidential process. Confidentiality helps the parties to be frank and open with each other as they try to reach a settlement.  

What happens in mediation stays in mediation. Anyone who takes part must sign a Mediation Agreement. Everyone must agree to keep everything they hear or see in the mediation confidential. Any documents you share will not be used for any other purpose. You are not allowed to share the other parties’ information with anyone.

Settlements can be private or public

If the complaint is settled at mediation, the terms of the settlement are confidential, unless:

• the parties agree to make part of the settlement public, or 
• the settlement is disputed in another legal proceeding.

Hearings are public

If mediation does not work, and your complaint goes to a hearing, the process becomes public. The public will be able to access any documents you submit that become part of the official record. The hearing itself will be open to the public.

A mediation session is not a hearing. You do not call witnesses, plead your case, make legal arguments or submit evidence. Before the mediation begins, the Commission will send the Tribunal a copy of your original complaint and a copy of its decision. This is just to give the mediator background information—it does not determine the outcome of your mediation. 

To prepare for the mediation session, you do need to do some thinking. You also need to complete three forms. Follow these steps:

1. Think about what you want to achieve

   The goal of mediation is to resolve the complaint as quickly as possible. To come to a settlement that all the parties can accept, you must be willing to compromise. Assess your options and what you would be willing to accept or give up.

   Make sure that you have the authority to agree to a final settlement of all or part of the complaint.

2. Think about what might happen

   Consider your best— and worst—case scenarios. It can be helpful to learn more about what has happened in similar cases. 

   You may want to get some legal advice about how strong or weak your complaint is. However, you do not need a lawyer for this process.

3. Complete two required forms
   • The Mediation Form: All the parties attending the mediation must fill out this form. This gives everyone a better understanding of the issues in dispute and what everyone is hoping to achieve at the mediation.
   • The Mediation Agreement: Everyone attending the mediation must sign this form agreeing to keep everything confidential. 

4. Tell the Tribunal what you need

   Do you or your support person need any accommodation, such as sign language interpretation, to take part in the mediation? If so, send the Tribunal an email as soon as you can. Describe what you need. 

   If you are an Indigenous person and you want ceremony before or after the mediation, such as a smudge, prayer or song, please tell the Tribunal.

5. Come to the mediation with an open mind about settlement

The Tribunal’s registry officer schedules the mediation for a time when everyone is available. Most mediations are scheduled to last one day.

Mediation can happen in person or in a virtual meeting. The Tribunal will tell you how to access the mediation session.

The mediator may start the session with everyone together. This is to explain the process to everyone at once. 

If you are not comfortable in the presence of the other parties, inform the Tribunal in advance. The mediator can put you (and your support person or representative, if you have one) in a private room. In a virtual meeting, this would be in a “break-out” room that only the mediator can visit. They will go back and forth between you and the other parties. 

Even if everyone starts off in the same room, the mediator may put the parties into separate rooms during the mediation. This can help them speak frankly with the mediator and, if applicable, with your lawyer or support person.

You can ask to speak with the mediator privately at any time. This is sometimes called “caucus”. 

You can ask to take a break at any time.

You can also ask to end the mediation at any time. 

How can I be sure that a virtual mediation session is secure and confidential?

Here are some steps the Tribunal takes to make virtual mediations more secure:

• Recording capability is disabled.
• A “waiting room” is used. The mediator will only admit the people who should be in the session.
• The virtual meeting is locked after everyone has joined the session.
• The meeting will have a unique meeting identifier. The meeting is password protected.
• You can access the virtual meeting without revealing your email address.

• Your agreement has to be written down in the form of a contract. This is called the “Minutes of Settlement”. 
• The mediator or a representative of the Commission may help you and the other parties write it down.
• All of the parties will review and sign the Minutes of Settlement. 
• Then it has to go to the Commission for approval. This is because the Canadian Human Rights Act requires the Commission to approve any agreement reached without a hearing.
• If the Commission approves the agreement, there will be no hearing and the complaint will be closed.  

The Tribunal does not enforce settlement agreements. If the other side does not do what they promised, you have to go to the Federal Court. It can enforce the settlement with a court order.   

If mediation fails, your complaint moves to the next stage of the Tribunal’s process: preparing for a formal hearing. At the end of your mediation session, ask your mediator to explain the hearing process.

The Tribunal will send you a letter explaining how to start preparing for the hearing. For instance, it will give you the deadlines for filing and exchanging documents.

As you prepare your case, remember that you and the other parties are free to try to settle at any time. If everyone agrees to try mediation again with a Tribunal-appointed mediator, send the Tribunal an email at registry.office@chrt-tcdp.gc.ca.