Local Mediation Committee Guidelines for Selecting Mediators - Ontario Mandatory Mediation Program

Introduction

The Mandatory Mediation Program is intended to provide an alternative dispute resolution process within the traditional civil justice system. Rule 24.1 of the Rules of Civil Procedure requires mediation in civil (non-family), case managed cases. Rule 75.1 requires mediation in estates, trusts and substitute decision cases. In order to serve litigants effectively and to ensure the credibility of the program, it is critical that mediation services performed under this program adhere to high standards of quality.

The role of local mediation committees

Local Mediation Committees have been appointed in Toronto, Ottawa and Windsor to supervise a consistent system of mandatory referral to mediation in their respective communities. The responsibilities of the Local Mediation Committees, as stipulated under the Mandatory Mediation Rule 24.1, include:

  • compiling and keeping current a list of mediators in accordance with guidelines approved by the Attorney General;
  • monitoring the performance of mediators named in the list; and
  • receiving and responding to complaints about mediators named in the list.

Committees will ensure that the roster of mediators meets the particular needs of the community and that there are mediators who are capable of working in both official languages.

The purpose of guidelines

In an attempt to assist Local Mediation Committees with their responsibilities, the Ministry has developed a set of provincial standards. The guidelines will aid Committees when assessing the qualifications of candidates who seek placement on the roster. The selection guidelines identify the following criteria for assessing individual applicants:

  • experience as mediator;
  • training in mediation;
  • educational background;
  • familiarity with the civil justice system; and
  • references

The Ministry has designed a score sheet for the Local Mediation Committees to evaluate applicants (see Appendix A).

Basic underpinnings of the Mandatory Mediation Program

To be considered for the roster of mediators, applicants must agree to abide by the following provisions noted under this section.

Commitments:

Mediators who are on the mandatory mediation roster are required to make a number of commitments as a condition of being on the roster including:

  • providing mediation services at a fee stipulated by regulation under the Administration of Justice Act;
  • attending an orientation session and any other training that may be required for roster mediators under the Mandatory Mediation Program;
  • abiding by the Code of Conduct, Complaints Procedure and any other policies and procedures under the Mandatory Mediation Program;
  • maintaining with proof, professional liability insurance with a minimum coverage of one million dollars;
  • agreeing to conduct up to twelve hours of pro bono mediations per year in accordance with the Program's Access Plan;
  • acting as a mentor, if requested, in accordance with the Program's mentoring policy;
  • participating in program evaluations as required, including providing statistical information as may be requested; and
  • paying any fees that may be required.

Mediation Process:

The mediation process involves the use of collaborative techniques by a mediator who is a neutral third party. The mediator informally assists disputing parties in voluntarily reaching their own mutually acceptable settlement of some or all of the issues in dispute by structuring the negotiation, maintaining the channels of communication, articulating the needs of each party, and identifying the issues. Mediators must be committed to a process that is: voluntary; private; confidential; self-determining; creative; practical and flexible.

Mediator Skills:

Mediators are not decision-makers or judges. Generally speaking, mediators display the following attributes: patience; acceptance of individual differences; flexibility; creativity/inventiveness; practicality; task-oriented; objectivity; focus; ability to analyse; intelligence; ability to recognize and manage power; strong verbal skills; active listening skills; ability to control the process without dominating the parties; and, confidence in the ability of the process to generate a satisfactory result.

The selection process

The Local Mediation Committee will have the sole discretion to determine who will be selected for the roster. Mediators wanting to be considered for the mediation roster must complete a prescribed application form. The application will then be assessed by members of the applicable Local Mediation Committee in accordance with the Ministry's selection criteria noted below.

A mediator may be appointed to the roster without an interview. However, Local Mediation Committees may decide to interview certain candidates.

The Local Mediation Committees will notify applicants in writing if they are selected to be on the Mandatory Mediation Program roster.

Selection criteria:

The following criteria will considered by Local Mediation Committees in the selection of mediators:

  • Experience as a mediator, training in mediation and educational background
  • Familiarity with the civil justice system
  • References

1. Experience as a mediator, training in mediation and educational background

Experience as a Mediator:

It is important that parties who retain mediators in the Mandatory Mediation Program have confidence in the skill and competence of the mediator. The 'Experience as a Mediator' criterion is designed to recognize direct and indirect experience in dispute resolution and to ensure an inclusive selection process. It also recognizes as suitable candidates those individuals who have experience that is closely related to mediation and which is indicative of potential success as a mediator.

Relevant factors under the experience criterion include:

  • the number of times the candidate has been retained as a mediator;
  • candidate's role in mediation (ie: sole mediator, co-mediator, observer or student with feedback from an instructor);
  • involvement in the mediation community;
  • complexity of the mediated disputes;
  • types of cases mediated.

Consideration can be given to candidates with mediation experience in counseling, pastoral care, social work, law, work with or within agencies, boards, commissions or tribunals and workplace settings where dispute resolution or conflict management was part of their responsibility. Mediation experience can include paid and volunteer mediations.

Candidates must have conducted at least five mediations as a sole or co-mediator.

Training in Mediation:

This criterion is intended to identify candidates who have demonstrated a commitment to acquiring and upgrading professional skills in mediation and dispute resolution theory and techniques. Candidates will be scored on the basis of their experience in learning skills in diverse areas of dispute resolution topics.

Factors which will be considered relevant for selecting candidates to the roster include:

  • the type of training program(s) taken;
  • the numbers of hours of training received;
  • the nature of the training -- whether theoretical, practical or a combination;
  • the extent to which the training covered such topics as interest-based mediation, conflict analysis, negotiation, ethics, confidentiality, role-playing, cross-cultural sensitivity and power imbalances;
  • involvement in dispute resolution mentoring or training programs, including the role of the candidate (lead, assistant etc.) and the nature and length of their involvement;
  • public speaking or teaching on the issues of dispute resolution at schools, colleges, universities or in any other community forums;
  • role in development of training courses and material.

Normally, candidates are to have a minimum of 40 hours of training. For individuals who may not meet this training criterion but are long-standing practitioners of mediation or trainers in mediation, the Local Mediation Committee may, in its discretion, accept those qualifications in place of the formal training requirements.

Educational Background:

This category is intended to recognize a variety of professional designations.

Relevant factors include the educational history of the candidate, the disciplines in which the candidate is trained and their connection to mediation skills.

2. Familiarity with the civil justice system

This criterion assesses a candidate's knowledge of civil procedure and the role of mediation in the civil justice system.

Candidates should demonstrate an understanding of how mediation supports the civil justice system. Applicants must have appropriate familiarity with the rules of civil procedure, the litigation process, the judicial system, and case management rules. Mediators selected for the roster will participate in an orientation session and receive a manual for reference purposes.

3. References

Candidates will be asked to provide three references who can address the candidate's mediation skills and commitment to the values and principles of mediation.

Appendix A: Criteria and score sheet for evaluating applicants for the mandatory mediation roster

For the purposes of appointment to the roster, mediator qualifications will be assessed on the following criteria: experience as a mediator/dispute resolver, training, educational background, familiarity with the civil justice system and references. The maximum possible score is 100 points. Candidates should score a minimum of 60 points in order to qualify for appointment to the roster and must also satisfy the qualifications below. (Some candidates may also be asked to participate in an interview).

  1. Experience as a mediator, training in mediation and educational background

    There are a maximum of 65 points that may be scored for the criteria in this section. To qualify for the roster, a mediator must:

    • have conducted at least 5 mediations as a sole or co-mediator;
    • have a minimum overall aggregate score of 40 points out of 65; and
    • have a minimum overall aggregate score of 20 points out of 45 for the combined criteria (a + c) in this section of experience as a mediator and training as a mediator.

    Criteria:

    1. Number of Mediations (score for one class only):
      • 5-10: up to 10 points
      • 11-20: up to 15 points
      • 21+: up to 20 points
    2. Role in mediations (score for one class only)
      • if 60% + of mediations done as observer or student with feedback from instructor: up to 5 points
      • if 60% + of mediations done as co-mediator: up to 10 points
      • if 60% + of mediations done as sole mediator: up to 15 points
    3. Training in Mediation (score for one class only):
      • 40 - 50 hours of mediation training: up to 15 points
      • 51+ hours of training: up to 25 points
    4. Educational Background and Related Experience:
      • up to 5 points

  2. Familiarity with the civil justice system

    A maximum of 30 points may be scored for this criterion, and to qualify, a candidate must score at least 20 points.

    Criteria:

    1. Familiarity with civil justice system/procedures/rules:
      • up to 30 points
  3. References

    Referee's assessment of the candidate's aptitude and skill in mediating (significant involvement in the mediation community may also be considered under this criterion).

    Criteria:

    1. Referees' assessment of the candidate's aptitude and skill in mediating and significant involvement in the mediation community:
      • up to 5 points

  Total possible points: 100 points