Policy respecting mediation by presiding member

The usual and preferred practice of the Tribunal is that a member who conducts a mediation does not conduct the hearing. When a Tribunal member is assigned to conduct a hearing, they may request that a mediator contact the parties to explore the possibility of settlement.

If a hearing is starting and the parties express interest in mediation, the member will determine if a mediator is available.

In the rare case where a mediator is not available, the member may discuss with the parties the possibility of the member first conducting the mediation and, if no settlement is reached, conducting a hearing of the complaint. The member will only proceed if the parties agree to and sign the Agreement to participate in mediation with presiding member.

The member must explain to the parties that:

  • the reason a mediator does not usually conduct a hearing is because the mediator may hear things that the party would not want a decision-maker to consider in determining whether the complaint is justified or in determining remedy
    • Example: A person may acknowledge they said or did something that they deny that they said or did.
    • Example: A person may offer to settle the complaint for an amount that is different from the amount they think the Tribunal should order.
  • in a usual mediation, the mediator encourages the parties to speak freely because this increases the chance of settlement, but in this process the parties may choose to be careful about what they say during the mediation
  • in a usual mediation, the mediator may meet with a party separately and hear information that the mediator keeps confidential from the other party; in this process the mediator will only do that if the parties agree that the mediator can do so
  • if the member decides the case, they will base their decision solely on the evidence in the hearing portion of the process, and will not take into account things the parties said in the mediation portion of the process.

If a party is self-represented, the Tribunal member should ask them whether they would like to get independent legal advice regarding whether they should agree to this process. The member should advise that the party may contact a lawyer of their choice.

All participants must sign the Agreement to participate in mediation with presiding member.