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Mediation is an alternative way to settle disputes that does not involve the court. In mediation, it is the role of the mediator - as a neutral third party - to help the parties find a compromise solution.

While it is the role of a judge to decide cases or impose settlements, a mediator does not have such authority. The mediator's job is to facilitate negotiation, an understanding of the opposing party or parties' positions and to help the parties find creative solutions to their differences.

There are no winners or losers at the end of the mediation process. Instead, all parties stand to benefit from obtaining a resolution to the dispute.

In Ontario, there is mandatory mediation for estates matters in Toronto and Ottawa, as well as in Windsor under Rule 75.1 of the Rules of Civil Procedure. According to that rule, mandatory mediation applies to proceedings.

Under Rule 75.1, proceedings relating to estates, trusts and substitute decisions are directed to mediation in the absence of a court ordered exemption. Within 30 days after the last day for serving a notice of appearance, applicants must bring a motion for directions with respect to the particulars of the mediation, including who is to attend, how the costs of mediation will be allocated and what the issues are to be mediated. Thirty days after that, the parties must select a mediator. At least 7 days before mediation, parties must provide the mediator with a statement of issues.

In jurisdictions where mediation is not mandatory, mediation can be requested in an Application for and Order giving Directions. The Court will often grant such an Order where the estate is not large and a quick and cost-efficient means to settle the dispute is required.

Mediation can take place at any stage of in the dispute process: before litigation begins, or at any point after the litigation process has been commenced.

Mediation is an attractive alternative to litigation for many reasons. Chief among these reasons are that mediation is less costly, faster and private.

Where litigation is a cost-intensive process (see 'costs' section of our site), mediation can facilitate quick resolutions.

Where litigation is also a public process, mediation allows the parties to keep sensitive disputes private. In addition, unlike in litigation where judges impose decisions upon the parties, mediation provides a forum in which parties actively participate in finding a solution.

In estates matters where parties are often family members, mediation can provide the first step in improving the relationship and lines of communication between the disputants. Where litigation often works to increase the acrimony between the parties, mediation is more likely to operate constructively.

All of the parties to a dispute must attend the mediation as well as the lawyer for any represented party. A lawyer alone cannot attend in place of a party. The parties to a mediation must have authority to settle the case.

Where mediation is mandatory, parties must continue the mediation for at least three hours before determining that the matter cannot be settled. With the consent of the parties, the mediator may extend the mediation beyond this time-frame where he or she believes that progress towards a resolution is being made. With a private mediation, the mediation can be set for the day or longer and continues for as long as the parties with to continue.

Rule 24.1.09(6) of the Rules of Civil Procedure requires the Local Mediation Coordinator to assign a roster mediator to the action where the parties have not filed their own selection of mediator.

However, parties may agree to a non-roster private mediator and obtain a Court Order from the Court to this effect.

Where parties choose a private mediator, the mediator is free to negotiate his or her own fees with the parties.

• the mediator's training, experience, knowledge about the court process, and familiarity with the kinds of issues involved in the lawsuit
• the mediator's approach to mediation
• the mediator's fees and expenses
• the mediator's references

See also: Wikipedia: Mediation