Can a Mediator Help to Resolve a Dispute Between a Landlord and Tenant?
Conflicts Within Residential Tenancy Relations or Commercial Tenancy Relations May Be Resolved Via Mediation.
Obtaining Mediation Services May Help Resolve Conflict and Heal the Relationship Between a Landlord and Tenant
When a conflict occurs between a landlord and tenant, whether within the residential tenancy realm or commercial tenancy realm, a professional mediator can serve as a viable option, as opposed to litigation, in helping the landlord and tenant to seek and find an amiable solution that serves both parties.
Unlike litigation at the Landlord Tenant Board or within the courts, mediation aims to avoid the adversarial nature of litigation and focuses on a collaborative approach to resolving disputes; accordingly, mediation is about the search for a win-win solution negotation between the parties to the dispute rather than arguing for a win-lose solution adjudicated by a tribunal or court.
What Are the Roles of the Landlord and Tenant During the Mediation?
As the parties in dispute, both the landlord and tenant are pivotal participants in the mediation process. Unlike in litigation, where the disputants are often involved merely as witnesses in testifying to facts that will be argued by legal representatives and decided upon by an adjudicator or judge, the landlord and tenant are the primary participants and the decision makers.
Similar to the litigative process, the landlord and tenant should come to mediation prepared to tell the story of what happened and therefore what the conflict is about as well as being openmindedly prepared to listen to the viewpoints and concerns of the other party. In this way, both the landlord and the tenant receive a forum to air concerns and to share ideas for solving the conflict through a negotiated agreement that is satisfying to all involved.
The role of the mediator is to listen to the landlord and tenant and to act as a guide for the clarification of the issues and the exploration of the ideas that can help solve the conflict as well as assisting in the formation of a settlement agreement.
How Long Does the Mediation Last?
A mediation is scheduled for a minimum of three hours with additional time scheduled as deemed necessary. Generally, a three-hour mediation session provides the parties in dispute with sufficient time to express views and concerns regarding the issues in conflict as well as to explore ideas that may bring a resolution to the conflict. A three-hour session also enables the parties to take breaks when necessary.
The mediation process is a strictly confidential process with exceptions for any circumstances where it appears that a child is at risk of harm, where a person is in imminent danger, or where a judge orders the disclosure of information obtained during the mediation process.
The parties to the mediation must agree to confidentiality so to enable a candid discussion with the mediator including openness about the conflict, settlement positions, among other views and issues. All parties and participants in the mediation are required respect the confidentiality of the mediation process and are required to refrain from disclosing details of the discussions that occurred within the mediation session. Accordingy, all parties and participants are required to commit to, and sign, a confidentiality agreement prior to the mediation session.
During negotiations within the mediation session, it is possible, perhaps even likely, that the mediator or the parties will prefer and decide to discuss offers independently. At any time, the parties may choose to meet separately with the mediator in a process known as a caucus.
The mediator is required to keep discussions that are held independently within a caucus confidential without disclosure to the other party; and accordingly, the mediator will refrain from sharing those details unless specifically permitted and directed to do so by the party to whom the duty of confidence is owed.
What Happens When the Parties Find a Solution?
When the mediation session results in a solution to resolve the dispute, the mediator assists the parties in drafting a settlement agreement. The settlement agreement formulates a binding and enforceable contract; and accordingly, before agreeing and signing the settlement agreement, the terms must be viewed as satisfactory to all parties involved. Generally, the mediator will require the parties to obtain independent legal advice prior to signing the settlement agreement and the settlement agreement will include a condition stating that the parties did, or did have the opportunity to, receive independent legal advice.