Preparing for a Mediation at the Tribunal

The Human Rights Tribunal of Ontario (the Tribunal) asks every person who files a human rights application (“Applicant”) and every person or organization responding to a human rights application (“Respondent”) to participate in mediation in order to resolve the issues raised in the application without going to a hearing.

Many of the applications filed at the Tribunal settle at mediation. For this reason, it is generally a good idea to indicate in your application that you are willing to try mediation in order to resolve your application. For further information about mediation, see the HRLSC information sheet called What do I need to know about mediation?

Any legal proceeding uses words and terms that you may not be familiar with and can be hard to understand. The Tribunal process is no exception and it uses some very particular language to describe the process. However, the Tribunal process is also designed to be accessible and understandable to applicants who do not have lawyers.

Application: The initial document that begins the Tribunal’s process. The Application is where you explain what happened to you, why you believe it is discrimination and what you want the Tribunal to order against the person or organization who was responsible for the discrimination.

Applicant: The person who files the application and who is claiming that his or her rights under the Ontario Human Rights Code have been violated.

Confirmation of Hearing: The notice sent out by the Tribunal to the Applicant and Respondent(s) (the parties) that sets out dates for the hearing and tells the parties when they have to share their documents and witness information with the other parties. The Tribunal has specific deadlines for requesting a change of hearing date: see What if I need to reschedule a hearing?

Hearing: The legal proceeding where you will present your case in front of the decision maker, called the adjudicator (a member of the Tribunal who acts like a “judge” in your matter). It is similar to a trial in court, although not as formal.

Human Rights Code: Ontario’s Human Rights Code (Code) protects people from discrimination and harassment at work, in housing, in the receipt and delivery of goods, facilities, services, and contracts, and with regard to membership in unions, trade or vocational associations.

The Code prohibits discrimination and harassment on any of the following grounds (or characteristics): race, colour, ancestry, place of origin (where you were born), ethnic background, citizenship, creed (religion), sex (including pregnancy), disability, sexual orientation, age, marital or family status, receipt of public assistance (in relation to housing only), or record of offences (in relation to employment only). You can find the Code at the government of Ontario’s e-laws web site.

Human Rights Tribunal of Ontario: The adjudicative body that enforces the Code. It consists of staff as well as a group of Tribunal members, called adjudicators, who are appointed to be the “judges” of human rights applications. The Tribunal’s purpose is to resolve, through either mediation or adjudication, applications brought under the Code. The Tribunal adjudicators (also called Vice-Chairs and Members) conduct both mediations and hearings.

Mediation-Adjudication: A mediation conducted by the same Tribunal member who would be deciding the case at a hearing. In order for this to happen, all parties must consent.

Notice of Mediation: The notice sent out by the Tribunal to the Applicant and Respondent(s) setting out the date scheduled for the mediation. The Tribunal has specific deadlines for requesting a change of mediation date: see “What if I need to reschedule the mediation?” below.

Party: Any person or organization entitled to participate in a proceeding. Sometimes, that could include the Ontario Human Rights Commission, your union and a person or organization added as a party by the Tribunal.

Reply: The Applicant’s reply (if any) to the Respondent’s answer to the application. The reply is intended to deal only with new matters that are raised in the response. If a reply is necessary, it must be filed within fourteen (14) days after a copy of the response has been sent to the Applicant by the Tribunal.

Respondent: The party that is responding to the application. Respondents can be both corporate entities and individuals.

Response: The Respondent’s answer to the application. A Response must be filed within thirty-five (35) days after a copy of the application has been sent to the Respondent by the Tribunal. The response is filed with the Tribunal and the Tribunal will then mail it to you.

Rules of Procedure: The Tribunal rules that govern Code applications. The purpose of the rules is to provide a fair, open process and to allow for fair and just proceedings.

Mediation is an opportunity for you and the Respondent(s) to meet in person, with a Tribunal member, to try to settle your application before it goes to a hearing. A settlement is a voluntary agreement to resolve the matter on specified terms.

A Tribunal member will lead the mediation. All the Tribunal mediators are also Tribunal adjudicators – they lead or chair both hearings and mediations. Tribunal members are human rights experts.

Mediation is voluntary. In order for it to take place, all parties to the application must agree to participate in mediation. As with all of the Tribunal’s services, the mediation is free of charge.

Even if the Applicant or Respondent does not indicate a willingness to participate in mediation, the Tribunal may determine that mediation appears to offer an opportunity to resolve the application. If so, the Tribunal will contact the parties and discuss the possibility of engaging in mediation. The decision to mediate remains voluntary.

If you do not attend mediation, or if you cannot come to an agreement with the Respondent(s) during the mediation, a hearing will be scheduled before the Tribunal.

Any settlement must be accepted by both you and the Respondent(s). If you reach an agreement, you will all sign a document setting out the terms of the agreement and a Tribunal form confirming that a settlement occurred at mediation. The Tribunal will issue an order saying the matter has been resolved and will close the file.

The mediation process is confidential. All matters (e.g. documents and statements) disclosed during mediation are confidential. This means that statements that you make at your mediation cannot be raised or used as evidence against you at the Tribunal hearing or in another civil proceeding, The mediator will not communicate any information about the mediation to the adjudicator without the parties’ consent and will not provide the adjudicator with any documents that are shared during the mediation.

Mediation is confidential in order to encourage the parties to have full and frank discussions with a view to possible settlement.

All the parties and their representatives (if any) who participate in mediation must sign a confidentiality agreement before the mediation commences. You should review the agreement and be prepared to sign the agreement before mediation starts. The Tribunal will provide you with a copy of the Confidentiality Agreement when you get your Notice of Mediation. You should bring the agreement with you to your mediation.

After the mediation is over (whether it is successful or not), the mediator’s notes or record of the mediation will not be shared with any person other than your mediator. The exception is when the parties consent to mediation-adjudication where the mediator and the adjudicator are the same Tribunal member.

If your mediation is successful, the parties usually agree that the contents of the settlement agreement will be confidential. These means that neither you or the Respondent can disclose the term and conditions of the agreement. However, in some cases, both parties will agree to making the terms of the settlement agreement public. This is more likely to be possible if the factual background is not personally embarrassing or humiliating to either party.

The Tribunal holds mediations and hearings at designated “regional centres” in Ontario – Toronto; Kingston; London; North Bay; Ottawa; Sarnia; Sault Ste. Marie; Sudbury; Timmins; Thunder Bay; and Windsor.

The Tribunal may also hold hearings in locations other than the ones listed above in order to accommodate any Code-related or other needs of the parties or their witnesses (e.g. disability or family related matters that make it difficult or impossible for you to travel). Any request for a change in location should be in writing and made to the Tribunal’s Registrar as soon as possible. For contact information of the Tribunal’s Registrar you can visit the Tribunal’s website. Also see the section below called “Contact the Tribunal about any accommodation needs.”

Where both parties have indicated a willingness to participate in mediation, the Tribunal will issue a Notice of Mediation. The Notice of Mediation will indicate the date, location and time of the mediation.

The Tribunal tries to schedule mediations within eight (8) months of a completed Application having been accepted. In addition, the Tribunal attempts to schedule hearings within one (1) year of the completed application having been accepted, but some hearings will require a longer period to commence.

Mediations are normally scheduled for a half day, either for the morning or the afternoon. If a matter is particularly complex, or involves a large number of parties, a full day may be provided. If you believe a full day is needed for your case, you should let the Tribunal know this as soon as possible, either before the mediation is scheduled, or immediately when you receive your Notice of Mediation.

The Notice of Mediation advises the parties on the procedure for rescheduling a mediation hearing if they are unavailable on the date set by the Tribunal. The Tribunal’s rules about this are set out in its Updated Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments. This practice direction is available on the Tribunal website.

If you are unable to attend the mediation date, you must act quickly. The Tribunal strongly recommends that you contact the other parties and agree on alternative dates that are within eight (8) weeks of the original date.

If you are able to agree on alternative dates, you must advise the Tribunal Registrar within fourteen (14) days of the date of the Notice of Mediation. The Tribunal will try to schedule the mediation on one of the agreed upon alternative dates.

If you are unable to agree on alternative dates, you must contact the Tribunal Registrar in writing, copied to all the other parties, and provide five (5) alternative dates that are within eight (8) weeks of the originally scheduled date. You must do this within fourteen (14) days of the date of the Notice of Mediation. The Tribunal will reschedule the mediation for one of these dates, if available, unless one of the other parties advises the Tribunal Registrar in writing, copied to all the other parties, that they are not available on some or all of the suggested alternative dates and provides five (5) additional dates.

If the parties are unable to provide mutually agreeable dates, the Tribunal will set the date for mediation without the agreement of the parties.

No. It is not necessary for you to have a lawyer or paralegal represent you at mediation. Mediation at the Tribunal has been designed for people who do not have a lawyer. Many applicants participate in mediation at the Tribunal without a lawyer. This is known as “self-representation”.

If you choose to have representation, you may be represented by a lawyer from the Human Rights Legal Support Centre, or a lawyer or paralegal licensed by the Law Society of Upper Canada (LSUC). You may only be represented by an unlicensed person if that person falls within a category the LSUC has exempted from its licensing requirements.

The current exemptions permit an unpaid friend or family member, an employee or volunteer from a trade union, and students, volunteers and employees of Legal Aid Ontario clinics, among others, to act as a representative. See the Tribunal’s Policy on Representation before the HRTO.

Think about what you would like to achieve at mediation.

The purpose of the mediation is to resolve the case without having a hearing, where possible and where both parties are reasonable.

In order to have a successful mediation, you will need to go in with a good understanding of what range of outcomes you would be willing to accept. Remember that in order to reach an agreement both sides will have to compromise. It is unlikely that you will be able to settle on the basis of getting everything that you would ideally like.

You should think about what your “best case” and “worst case” scenarios would be. The best case is what you would be able to achieve by going to a hearing, and the worst case would be getting nothing after going through a hearing and losing (having the Tribunal decide against you). You need to consider the minimum offer that you would be willing to settle for, in order to avoid the risk of losing at a hearing, and to have the comfort of the matter being concluded.

You should also think about any other alternative remedies that you would like, but did not list on your application, including ones that you might not even get at a hearing. For example, maybe you would be willing to take less money than you originally asked for in your application, if you could receive a positive letter of recommendation from your employer. The employer might be willing to provide this, in order to settle the matter, even though the Tribunal might not award it at a hearing.

The mediator will be able to provide you some guidance and advice throughout the mediation process on whether s/he thinks the offers being made are appropriate or reasonable. However, it is your decision to accept or reject an offer, and you can always choose to continue on to a hearing if the offers being made are not reasonable to you.

Getting yourself prepared to participate in your mediation will increase your ability to achieve what you want. Depending on the nature of your application, you should bring some or all of the following with you to your mediation in order to be able to participate in an effective and efficient matter:

1. Pens, paper and a calculator
2. Your application, the response and your reply (if any)
3. Medical documents (if the case is related to the ground of disability)
4. Other key documents that support your case
5. A list of potential witnesses

Whether or not you have a lawyer or paralegal, you can bring a family member, friend or anyone else for personal support. You should prepare that individual for the mediation. Tell that person exactly what you want them to do during the day. For example, you could say that you want them to signal to the Tribunal member or your representative that you are really upset and need a break. On the day of the mediation, the mediator will want some explanation of whom the person is and why they are there.

If you need the Tribunal to accommodate you (see the HRLSC Information Sheet called Your Right to Accommodation under Ontario’s Human Rights Code) you should contact the Tribunal Registrar before your mediation date. For example, if you have particular needs because of a disability, or need an interpreter to be able to participate in the mediation, you should call and write to the Tribunal to tell them that. The Tribunal has also issued a Practice Direction on Requests for Language Interpretation.

For more information about accommodation see the Tribunal’s Policy on Accessibility and Accommodation and in various accessible formats including Braille, audio and large print.

Mediation often involves a meeting of all parties in the same room. Many mediations start out in this way but it is not a requirement. If being face-to-face with the Respondent makes you uncomfortable, you should advise the Tribunal in advance of your mediation date and explain why you do not want to be in the same room with the Respondent. You can be placed in separate rooms from the start of the mediation. The mediator will go back and forth to each room, communicating to each of you what the other’s position is, while trying to get you to reach an agreement.

Note that you should contact the Tribunal in advance if you do not want to be in the same room as the Respondent. This request will generally be accommodated and is often requested in, for example, sexual harassment cases.

The parties will usually all start out in the same room with the mediator. If you do not want to be in the same room as the Respondent, and you have not made that request in advance as discussed above, you can ask the mediator for a separate room before the mediation starts.

The mediator will begin by explaining the process to all of the parties, including such matters as:

• The process is voluntary
• All parties are expected to be respectful toward one another
• The goal is to have a signed agreement by the end of the day

After this the mediator will usually explain their mediation plan and make sure that it is agreeable with you and the Respondent(s). S/he might suggest beginning with a joint session, in which both sides sit together for a discussion of the case. Alternatively, s/he might suggest starting with separate discussions. For example, s/he might say something like: “I plan to spend 30 minutes with the Applicant, followed by 30 minutes with the Respondent, and see where we get to at that point. If we need to go back and forth again, I will probably spend a shorter amount of time with each of you again.” You can ask for clarification of the plan, or to change it, at any time.

The mediator may review the application with you and the Respondent(s), either together, or after splitting you into two separate rooms. S/he will likely have questions about what you have written on your application form, either for clarification or to get more information. The purpose of this is to make sure that s/he understands the parties’ positions.

You will have a chance to tell the mediator, in private, what happened to you and what you want to see done about it. The questions asked by the mediator will help them figure out what would be a fair resolution of the matter. You will have the chance to propose settlement options and to respond to options presented by the Respondent(s).

If there is a key document that you would be relying upon to prove your case at a hearing, it would be useful to bring it. It is not normally necessary or appropriate to bring witnesses to a mediation, however it is helpful to know what witnesses you would bring if a hearing went forward. This information will help the mediator to understand and assess the strength of your case.

You can ask for a break if you need it at any time, and for time to think about whether you feel comfortable with the settlement that has been offered by the other side. Remember, however, that you only have a half day for the mediation, and it will pass surprisingly quickly.

The mediator will consider what you and the Respondent(s) have said and will look at any documents provided. The mediator will present the proposals and counter-proposals made by each side to the other, and my even have some of his or her own suggestions. For instance, the mediator might say to you: “The Respondent is not willing to say they will fire the employee who did this to you, but they are willing to make sure that the employee and all the others at the company get human rights training, and they are willing to give you money for pain and suffering. Would you be willing to consider that?”

The mediator can also clarify human rights law. For instance, if you have been refused a promotion because you are pregnant, your employer may take the position that having a baby is your choice and that refusing to promote you has nothing to do with your human rights. Your employer may tell the mediator that the reason for not promoting you is that you will not be able to work evenings regularly once you are a parent. The mediator can point out that the ground of “family status” in the Code prevents employers from treating employees negatively because of family responsibilities and that the law may not support the employer’s position. The mediator will not usually give an opinion on how your case would be decided, but can give you an idea of its strengths and weaknesses.

You should call the mediator “Vice-Chair [last name] .”

Generally the mediator will presume that anything you say can be revealed to the other side unless you tell them otherwise. If there is something that you want to be kept confidential, you should talk to the mediator when you are alone in the room with them and explain that you want to tell them something that you don’t want the Respondent to know. The mediator will respect your privacy.

For example, you might want to tell the mediator if it is very important for you to get any settlement money quickly, but you could ask the mediator not to share that information with the Respondent. You don’t want your need for quick payment to influence the amount of money offered or whether the Respondent will agree to your terms and conditions of settlement.

No. You have a right to a hearing at the Tribunal. If you are not satisfied with the settlement that is being offered to you by the Respondent and the Respondent will not change their mind, then a hearing will have to be scheduled. The offers made and rejected at mediation will not be revealed and cannot be used against you. The hearing will be decided based on the evidence presented and the applicable legal principles.

If the mediation does not result in an agreement, the mediator will advise the Tribunal Registrar and a hearing date will be scheduled. In general, the Tribunal tries to have your hearing within about three to six (3-6) months of the mediation date. If you are not available for the scheduled hearing date you must follow the Tribunal’s policy regarding scheduling of hearings and mediations.

Before the mediation ends, if your application has not settled, the mediator may ask you some questions about what is likely to occur at the hearing. S/he will want to know how many witnesses are expected to be called by each side, and how long the hearing might take. There will likely be some discussion about how long the hearing will take. You should think about the answers to these questions in advance of the mediation day.

If your mediation is unsuccessful, you will have a different Tribunal member for your hearing. The only exception is a mediation-adjudication. See the definition above under Definitions.

The mediation is expected to be completed within the amount of time that is allocated, which is usually a half day. This is not a lot of time, so you need to prepare ahead of time as much as you can. The mediator may be able to stay a little bit longer than scheduled, to provide further assistance, if things are progressing well. In exceptional cases, the mediator may be available following the mediation day, but this is very unusual.

While all of the precise terms of a settlement will vary from one case to another, there are some terms that are very common in agreements. For example:

• If money is being paid as damages for pain and suffering it will state that if the Canada Revenue Agency ultimately requires tax or other statutory deductions (which will not be deducted by the Respondent), you will be responsible for paying them
• If money is being paid as lost “income”, it will state that the amount you receive will be reduced by “all applicable statutory deductions” (which means the income tax, Canada Pension Plan and Employment Insurance deductions normally found on your income statement)
• If other remedies are awarded, such as public interest remedies, it will state that the Respondent agrees to undertake to provide human rights training to all its employees
• It will often state that the applicant is required to keep the terms of the settlement confidential except insofar as it is required by law to be disclosed to third parties
• It will usually state that the applicant is not withdrawing the allegations about the discrimination and the respondent is not admitting to the discrimination. This does not mean that the discrimination did not take place – it simply means that the parties are not agreeing to put in writing that the Respondent is responsible

These points of agreement might be presented in terms such as the following:

The parties agree as follow:

1. The Respondent, [name of company], shall pay the Applicant $ [Amount] in general damages to the Applicant [your name].
2. The Respondent [name of company] shall pay the Applicant $ [Amount] in wages lost and subject to any applicable statutory deductions.
3. The Respondent shall make sure that all employees receive human rights training by a professional organization with expertise in human rights. This training is to be completed by [insert date].
4. The parties agree to maintain the strict confidentiality of these Minutes of Settlement, except as required by law, and with the exception that the Applicant may disclose them to her/his immediate family, and her/his legal and financial advisors, and the Respondent may disclose them as necessary to implement the terms.
5. The settlement does not constitute an admission of liability by the Respondent or withdrawal of the allegations by the Applicant.

The Tribunal will usually only schedule one half day for your mediation. If that mediation is not successful, your case will be scheduled for a hearing.

Occasionally a second mediation may take place. For example, if it is a complex case and all the parties advise the Tribunal that they are interested in a second mediation, a joint request might be granted.

Also, the first day of hearing is sometimes used for mediation. This may happen if the Tribunal member assigned to hear the case thinks feels that a settlement should be viable, or if the parties advise, at the beginning of the hearing, that they believe a settlement discussions would be useful.

When settlement discussions occur at the beginning of a hearing, the Tribunal member scheduled to hear the case may also conduct the mediation, but only if all the parties agree to this. A written agreement called a “mediation-adjudication agreement” must be signed by everyone.

It is up to you whether you want to have the same person do the mediation and hear the case. It can be a helpful way to familiarize the Tribunal member with the issues, and to possibly reduce the amount of time needed if the matter proceeds to a hearing. On the other hand, some parties are not comfortable speaking freely with the person who will be conducting their hearing.

If the parties would prefer to have a different Tribunal member conduct settlement discussions on the hearing day, the Tribunal member assigned to hear the case may be able to find another Tribunal member to do the mediation. This will only be the case if there is someone free, however, so it will not necessarily be possible.

Confidentiality

The information you supply in your application, and other information about your case can become public, especially if your case progresses to a hearing and also if a decision is written for your case.

Additionally, under the Code, if the Ontario Human Rights Commission requests to see your application, or any filed responses, the Tribunal must share it with them. The Tribunal may also have to share your application in response to a request to the Tribunal for disclosure of information through the Freedom of Information and Protection of Privacy Act.

The Tribunal has policies for responding to requests for information, as well as requests to keep information private. The Tribunal’s responses are based on balancing privacy interests with the public interest in having a transparent legal process.

Language interpretation

The Tribunal is obligated to provide language interpretation or sign language interpretation to the parties in a case if they need such services in order to participate fully in a hearing or mediation. These interpreters will attend the hearing and/or mediation.

In order to request interpretation services you should contact the Registrar’s office at the Tribunal as soon as possible.

Accessibility

The Tribunal will accommodate any party or witness according to their Policy on Accessibility and Accommodation. If you need any accommodation to partake in any process related to the Tribunal, you will need to contact the Tribunal’s Registrar.