Guide to Pre-Complaint Mediation
This document provides you with general information about what to expect if you try and resolve a human rights concern of discrimination through mediation, prior to a formal complaint being registered with the Commission.
What is Pre-Complaint Mediation?
Pre-Complaint Mediation is a voluntary dispute resolution process offered to individuals before they have registered a formal complaint with the Commission. During this process Commission staff acts as an impartial facilitator and assists the parties to resolve their issues without the need to register a formal complaint.
What kind of training does the mediator have?
The mediator assigned to the complaint will be a Commission staff member with specific expertise and professional training in mediation combined with knowledge of The Human Rights Code.
Will I have to meet with the other party face-to-face?
No. At this stage, the process is led by the mediator and usually involves the mediator speaking with either party by telephone explaining what the human rights concern is and attempting to identify ways in which the parties might resolve their dispute. In some cases, the mediator will provide the parties with an opportunity to meet in person, but this is not necessary.
Why would I want to resolve the complaint through Pre-Complaint Mediation?
Sometimes the potential complainant may be looking for an explanation or apology, nominal compensation or simply an assurance that others will not be treated the same way by the other party. This process can often achieve those results fairly quickly in a non-adversarial and confidential manner.
What if we are not able to resolve the complaint?
The Commission usually allows the parties 30 days to try and resolve the potential complaint through Pre-Complaint Mediation. Either party or the mediator may decide during this process that it would not be productive to proceed with mediation. If this happens, the potential complainant may wish to file a formal complaint. This is given to the Registrar for registration, which starts the formal complaint process.
What does a settlement usually include?
The mediator is impartial and cannot provide you with legal advice. The mediator will encourage you to focus on what you are looking to achieve through the process. This may include restoring dignity, financial compensation, an apology, reference letter, or reinstatement for the potential complainant. It may also include the implementation of an anti-discrimination or harassment policy. The Commission’s website has summaries of adjudication decisions and settlements that may provide some guidance.
Can anything I say be used against me if the complaint is not resolved?
No. Mediation discussions are "without prejudice" which means that any information you provide to the mediator or the other party during the mediation process cannot be used against you or prejudice you at an adjudication hearing. (Remember however, that the other party may be able to get the information through other means, such as through the testimony of a witness at a hearing).
The details of the mediation process are kept confidential. The investigator assigned to the complaint will not have access to any details of the mediation, nor will the Board of Commissioners when it makes a determination about the merits of the complaint, or an adjudicator who may make a decision about the complaint at a hearing.
What are Damages?
The term "damages" is a legal term that refers to money paid to the potential complainant to compensate for any loss suffered as a result of the discrimination. Damages may be calculated based on lost wages, out-of-pocket expenses, and by referring to what has been awarded in similar cases of discrimination. "General damages" refers to money to compensate for loss of self-respect and dignity. "Special damages" refers to actual costs incurred by the person with the human rights concern as a result of the discrimination.
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 Pre-Complaint Mediation process, please speak with your mediator or visit our website for examples of mediated settlements: http://www.manitobahumanrights.ca//settlements.html