Mediation is a form of alternate dispute resolution that allows the participants to find a resolution of an appeal without going through the Board's formal hearing process. The key elements of mediation are that it is entered into freely by all participants and is designed to assist participants in reaching a mutually agreeable solution. For this reason, it is important that all participants who attend mediation do so in good faith, and understand that since they will have a hand in shaping their own resolution, the end result will be more meaningful in addressing their own needs.
The Board and Alberta Municipal Affairs and Housing collaborated to create this short video to provide
an introduction to mediation. The video uses a fictional hockey/figure skating dispute as an example of how the mediation process would work in developing a resolution. Although every mediation is different, this video provides a basic understanding about the process and goals of mediation.
Participants may be nervous and anxious about an upcoming mediation because they are
unfamiliar with the process. Part 1 of the video outlines the dispute as it follows one of the participants before he enters mediation. Part 2 depicts the mediation process followed by a summary of important points regarding mediation. In the video, the participants find a resolution and are able to work together to achieve their individual and common goals.
Mediation & the Board
The type of mediation used by the Board is known as interest-based mutual gains dispute resolution. This means the Board's mediators work to uncover the real reason or motivation behind the dispute and find out what is important to the participants in reaching a solution. This is known as the participant's interest. Once the participants' interests have been uncovered, the Board's mediator helps them come up with mutually agreeable solutions that meet as many of these interests as possible. This is the mutual gain that is being sought.
Examples of interests are: Concerns, hopes, expectations, assumptions, priorities, beliefs, fears, and values.
When participating in mediation through the Board's process, the participants need to take into consideration the parameters of the legislation that govern both the Board and Alberta Environment and Sustainable Resource Development. A mediator is used to facilitate open, honest discussion and acts as a neutral that works closely with the participants to uncover underlying interests and assists them in exploring possible solutions. The mediator is not an advocate for any side. The mediator remains neutral to create an environment of trust within the mediation. Confidence in the mediator's sense of fairness and impartiality creates a greater willingness of the participants to have frank and open discussions and generate options, leading them to a mutually agreeable solution.
Before mediation takes place, the Board's staff conducts pre-mediation work through written and verbal communication. The Board's staff works to educate the participants on mediation and establishes the date, time, location, and those who will be in attendance. For many of the participants, it is their first time dealing with the Board and with mediation. Therefore, educating the participants on what they can expect is important in creating a fair and level playing field in the mediation. Board staff can and have been helpful in diffusing tension or emotion before a mediation by beginning to establish a better understanding of the details of the appeal.
The Board uses its members as mediators, and this approach has proven to be very successful. Each of the Board Members is respected in their fields, and they bring their recognized expertise to the mediation. Board Members use their expertise to ensure effective communications between the participants, and that a level playing field is established where a complete and open discussion can take place.
The Board believes it is important to continually review and improve the way it conducts mediations and therefore, requests participants provide feedback via confidential evaluation forms. The information provided from participants assists the Board in determining where improvements can be made. The vast majority of participants have indicated that mediation was a positive and effective process in resolving their disputes. They also indicated they would use the process again. Generally, participants thought mediation was useful because it gave them the ability to speak candidly, restored relationships, and they were encouraged to develop their own solutions.
Given the continued success of the Board's mediation program, it is an area that will continue to expand and improve. Overall, the Board has found mediation to be a very effective and efficient way to address certain appeals that come before us.
Mediation - Why Use It?
- cost effective;
- saves face;
- participants are more likely to follow-through with an agreement they have crafted;
- promotes win-win solutions;
- control over outcome lies with the participants;
- maintains existing relationships and sometimes forms new relationships;
- promotes creativity in generating options; and
- promotes positive communication and understanding.
When is Mediation not Appropriate?
The Board strongly values the principles of mediation and tries to use it as much as possible to resolve its appeals, however, there are times when mediation may not be appropriate. Generally, the Board will not recommend mediation for the following situations:
- the matter is of important legal principle that should be decided by a panel in a formal proceeding;
- the issue is of significant importance or deserves public attention and there is a need to have a hearing where the public has an opportunity to participate;
- key participants are entrenched in their positions and are unwilling to negotiate in good faith;
- long, protracted discussions have taken place with no resolution to date; or
- participant(s) is unwilling to participate.
Types of Cases the Board Mediates
Cases that come before the Board are dealt with through mediation usually involve:
- enforcement orders/actions;
- land reclamation;
- contaminated sites;
- water licences; and
- water approvals.
Determining Issues, Positions and Interests in Mediation
In order to effectively resolve conflict, the mediator will assist the participants in differentiating between issues, positions and interests.
Issues are the topics or subject matter the participants would like to reach resolution on. It is the subject that the participants have a difference of opinion on and the items on the agenda that need to be discussed.
Examples of issues are conditions in, or the issuance of a:
- Water Licence
- Reclamation Certificate
- Enforcement Order
Positions and Interests:
Positions are one-sided statements proposing a fixed solution to one participant's needs, wants and desires.
Examples of position statements are:
- "I want?"
- "I need?"
- "This is the only way?"
- "We have to?"
- "I will not?"
Mediation tries to move participants from their positions to their underlying interests (noted below). Shifting participants from positions to interests is important because it helps them understand and evaluate what is most important to them. Many participants may not realize until they are in mediation, what their true interests or concerns are. Positions are easy for individuals to come up with because they often seem to be the most "logical" or "reasonable" approach to settling the dispute in their eyes. To many participants, a position is the concrete expression of a more refined interest. An Appellant who is a farmer may demonstrate his position by stating "I need the well to stop pumping because it's affecting my water levels", however, his underlying interests may be "I'm worried about my family not being able to have enough water or having enough water to provide for my livestock". Participants who remain entrenched in their positions and remain that way are very limited when it comes to generating solutions. Mediators will assist the participants in bringing out their underlying needs as this allows everyone present to gain a better understanding of the situation and help the participants come up with solutions that will address their real concerns in a meaningful way. Some people are uncomfortable with stating interests, as they may be very personal. Effective mediators create a comfortable environment where participants can share in a way that they are at ease in expressing their deeper perspective.
Other examples of interests are:
- Sense of belonging