Guide to Board-Directed Mediation
This document will provide you with general information about what to expect when a complaint is referred to Board-Directed Mediation (“BDM”). The Board of Commissioners (“Board”) will refer a complaint to BDM if it determines that there is enough evidence of a contravention of The Human Rights Code (“The Code”), to warrant the complaint going to the next stage in the complaint process. This determination is based on the evidence in the Investigation Assessment Report and any submissions from the parties in response to the report.
What is Board-Directed Mediation?
BDM is a voluntary dispute resolution or settlement negotiation process undertaken prior to a complaint being referred to a public adjudication hearing. Commission staff act as an impartial facilitator and assists the parties to resolve the issues raised in the complaint. It differs from mediation at other stages in the Commission’s processes in that BDM is only undertaken when the Board has determined, based on the Investigation Assessment Report and submissions from the parties that there is enough evidence to support the allegations in the complaint.
What kind of training does the mediator have?
The mediator in most cases will be a Commission staff member with specific expertise and professional training in mediation combined with knowledge of The Code.
What is the mediator’s role?
The mediator assists both parties to arrive at a settlement of the complaint, which meets the objectives of The Code. The mediator will focus the parties on any issues specifically identified by the Board to try and get the parties to address and resolve those issues. The mediator relies on the Investigation Assessment Report and previous adjudication decisions or other law to guide the parties to consider what evidence they each have to support their positions. This evidence will be required if a settlement cannot be reached and the complaint goes to a public adjudication hearing. The mediator is impartial and cannot provide legal advice but may be able to provide information to the parties as to the factors an adjudicator might consider at a hearing.
Will there be many meetings?
The mediator will communicate with you by telephone, by email or in person, taking into consideration your preference, and the complexity of the complaint. It is up to the mediator to decide what type of process will be used.
If you have a specific need for accommodation during the process, you may be asked to provide evidence to support your request.
Will I have to meet with the other party face-to-face?
No. BDM is led by the mediator who may use different processes, and take into consideration what the parties are most comfortable with, or interested in, to try and resolve the complaint. BDM usually starts with a discussion of possible settlement options and each party providing the mediator with their settlement position. The mediator then relays those settlement positions to the other party and this is called “shuttle negotiations.” In some cases, the mediator will provide the parties with an opportunity to meet in person and discuss their settlement positions, but this is not necessary.
How long do we have to try and resolve the complaint?
The Commission usually allows the parties 60 days to try and resolve the complaint. If during this period, you don’t accept the other party’s settlement offer, you can make a counter-offer that they can accept, reject or modify. If the parties require more time, they can ask to extend the Board-Directed Mediation period.
What does a settlement usually include?
The mediator will encourage the complainant to focus on the allegations in the complaint and ask for supporting evidence as well as ideas about what would compensate for the discrimination. This may include monetary or non-monetary remedies such as a change to a discriminatory policy or practice or an apology. The Commission’s website has summaries of adjudication decisions and settlements that may provide guidance. See the Guide to Remedies for further information.
How do you prove that the parties agreed to a settlement?
If the parties are able to voluntarily resolve the complaint through mediation, the mediator may draft a Memorandum of Agreement that outlines all of the settlement terms. The complainant often signs a Release that says that he or she gives up the right to complain against the Respondent about the specific issue raised in the complaint, in the future. Each party signs the Memorandum of Agreement and the signed copies are provided to each party.
Why would I want to resolve the complaint through Board-Directed Mediation?
Going through a public adjudication hearing sometimes leaves both parties unsatisfied. Mediation is not adversarial and you are able to keep your issues confidential. There is no guarantee that a complaint will be successful if it does go to an adjudication hearing. Where a case has been referred to adjudication, the Board, has simply found that there is enough evidence for an adjudicator to make a decision about the complaint, and that a hearing would further the purposes of The Code.
By keeping in mind the strengths and weaknesses of the evidence, as well as possible orders of remedy that an adjudicator can make if a human rights complaint is successful at hearing, the respondent and complaint can work towards a realistic settlement of the complaint.
What if the Complainant and Respondent are unable to come to a settlement?
If a voluntary settlement cannot be reached the Board may be requested by the respondent to assess whether its offer of settlement is reasonable. The respondent puts their offer in writing and The Board then considers the offer as well as the complainant’s written response to it. See the Guide to the Reasonable Offer Process for further information.
If the respondent doesn’t put an offer before the Board to assess its reasonableness, the complaint generally will proceed to a public adjudication hearing.
How does the Board decide if the offer is reasonable?
It will consider whether or not the offer includes remedies that approximate what an adjudicator might award if the complaint was heard at an adjudication hearing and the allegations in the complaint were proven to be true. It may consider decisions from courts or other adjudicators on similar issues and may also consider if the offer addresses the public’s interest in ensuring a similar situation does not occur again.
What happens if the Board decides the offer is reasonable?
If the Board decides the offer is reasonable, the complainant will get another opportunity to accept it. If the complainant rejects that offer, the Commission will terminate the complaint proceedings.
In some cases, the Board may decide the offer is reasonable only if certain minor changes or modifications are made to it. If this happens, the respondent will be asked if it wants to make the suggested changes to its offer. If it does, the modified offer will be presented to the complainant. If the complainant rejects the modified offer, the Commission will terminate the complaint proceedings.
What happens if the Board decides the offer is not reasonable?
If the Board decides the offer is not reasonable the complaint may be sent back for further mediation but will usually be sent forward to a public adjudication hearing.
Once a complaint is referred to an adjudication hearing and the BDM process is over, the Respondent has no further opportunity to have the Board assess its settlement offer. Adjudication under The Code is a hearing of the human rights complaint before an independent adjudicator who is neither staff nor on the Board of Commissioners. The Manitoba Human Rights Commission, the complainant and the respondent are all parties to the adjudication.
Can anything I say be used against me if the complaint goes to an adjudication hearing?
No. BDM negotiations are “without prejudice” which means that information you provide to the mediator or the other party cannot be used against you or prejudice you at an adjudication hearing.
However, once a settlement offer is put before the Board to determine if it is reasonable that offer and the complainant’s response to it will not be without prejudice as the Board will be making a decision based on that information which might result in termination of the complaint proceedings.
Do I need a lawyer?
No. Parties always have the right to legal representation but it is not required at any stage in the Commission’s proceedings.
For more information about the Commission's Board Directed Mediation process, please speak with your mediator or visit our website for examples of mediated settlements: http://www.manitobahumanrights.ca//settlements.html