-by Joseph J. Sullivan, C.S., Sullivan Mediations
Mediators utilize special procedures for dispute resolution on sensitive employment matters.
Recently, I was mediating a case in which a significant part of the claim was for damages for infringement of the Ontario Human Rights Code R.S.O. c.H.19 (“Code”), pursuant to Section 46.1 of the Code.
Although the Code does not provide a stand alone right of action (section 46.1(2)), subsection 1 allows the court to award monetary compensation or restitution if the court finds that a party to a civil proceeding has had a Part I right infringed. This Part contains the Freedom from Discrimination protections and includes the right to equal treatment free from discrimination because of race, ethnicity, colour, religion and other protected grounds. Also protected is the right to freedom from employment harassment and sexual harassment.
Unique mediation strategies ought to be considered in these cases.
I have found it is wise to avoid the general opening session with all parties present. I speak to each of the parties and his or her counsel before we get started and seek consensus to have a brief meeting with the lawyers before the negotiations.
If there are strong ill feelings between the parties, I try and navigate the parties into separate rooms to avoid sparks flying before a 10:00 a.m. start.
In such cases, counsel are usually well aware of the high conflict atmosphere and agree to keep the parties apart. At the same time, I find it important to carefully explain to the parties (the employee, the employer and alleged harasser) our process so there is buy in to the plans for the day.
I convene a brief meeting of the lawyers only to make sure any housekeeping matters are handled; this can also be an opportunity for counsel to make a brief opening to clarify a party’s legal and factual position. For example, a defendant may seek clarity on a damage calculation or a party might be seeking some documents.
I instruct counsel to explain carefully to his or her client the essentials of what was discussed between the lawyers with the mediator.
Importantly, I personally assure each party that their legal and factual position has been communicated effectively to the opposition.
This personal assurance from me is important because the party does not have the advantage of the general opening session where all parties can see their case being put to the opposition directly.
Outcomes of these mediations should be considered well in advance. Oft times an apology is sought or an acknowledgement of responsibility. I recommend counsel be mindful, early on, as to what wording is being demanded.
Confidentiality provisions in Minutes of Settlement are material terms of a resolution. The specific terms should be exchanged between the parties sooner rather than later during the mediation day so any wrinkles or disputes can be worked on early.
I find we, as lawyers, take confidentiality terms casually when many times disputes can arise late in the day as occasionally defendants seek very broad terminology. Counsel should provide careful explanations, especially to non-corporate individuals, as to the application of the confidentiality terms; for instance, reminding clients that confidentiality applies to social media (Facebook, Twitter, etc.). Counsel should also advise their clients what consequences arise upon breach of such terms.
More typical considerations include tax consequences, time delivery for settlement funds and dismissal orders.
All mediations are different with the convergence of various personalities of the parties, the lawyers and the mediator.
Mediators in more sensitive cases require some thought beforehand so unfortunate blow ups can be avoided that might require a mediator to use valuable time during the day to untangle.
When counsel become aware of hard ongoing feelings, settlement authority concerns or other special issues, it is wise to advise the mediator as soon as possible, even before the scheduled day of the mediation.