Mediation in Employment Cases

Written on behalf of Peter McSherry

Mediation has become an effective and popular tool to achieve a settlement of existing and even threatened litigation, particularly in employment law cases going to trial. In certain cities in Ontario, such as Windsor, Toronto and Ottawa, mediation is a mandatory process.

However, often the parties may voluntarily agree to use a mediator to try to settle the case. It is a process which should be considered in every case.

The Mediator

The parties will agree to the person who is to act as the mediator. Generally this person is an experienced employment lawyer who has been around the block a few times.

The Mediation

The mediator has no power to force either party to a settlement. Nonetheless, the mediation process has proven to be very successful in resolving employment law disputes, usually at a relatively early stage of the case when legal costs are still modest.

It is important that all relevant documents are exchanged between the parties before the mediation date. This will include documents detailing the plaintiff’s job search in the case of a wrongful dismissal, the termination letter, supporting performance materials, if in issue and generally all documents relevant to the issues in the case.

If the case is resolved, minutes of settlement will be signed at the mediation. Where settlement funds are required by the agreement, payment is usually made within two to three weeks. A general release will always be required.

Often the employee plaintiff will request a reference letter be provided as a settlement term. If so agreed, this will become a covenant of the agreement. This is a good example of a settlement term which can be attained through mediation, yet a court has no power to order.

Division of Settlement Funds

The parties can also agree to setting out sums for human rights damages and other claims which may have a non-taxable result. This again cannot be done in court. This issue was reviewed in a previous post. It is an important consideration in many cases.

Confidentiality & Privilege

The mediation is usually based on a mediation agreement by which the parties agree that the contents of the mediation discussion cannot be repeated to others outside of the mediation. This again is a benefit of mediation. The terms of settlement will always be confidential. A court ruling will always be public.

Advice on Mediation

It is important to understand the mediation process and its significance. When conducted fairly, it can often lead to an early settlement of the case and can save time and money for all parties.

If you have questions about mediation, contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.