Guide to Pre-Investigation Mediation
This document provides you with general information about what to expect if you try to resolve a human rights complaint of through Pre-Investigation mediation. It occurs after a formal complaint has been registered with the Commission and served on the respondent but before an investigation. Therefore no assessment of the merits or validity of the complaint has been made.
What is Mediation?
Mediation is a voluntary dispute resolution or settlement negotiation process in which Commission staff acts as an impartial facilitator and assists the parties to resolve the issues raised 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 Human Rights Code (“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 raised in the complaint to try and get the parties to resolve those issues. The mediator relies on 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 the complaint goes to an investigation or ultimately to a public adjudication hearing. The mediator is impartial and cannot provide you with legal advice but may be able to provide information to the parties as to the factors an investigator or adjudicator might consider.
Will there be many meetings?
The mediator will communicate with you by telephone, by email or in person, taking into consideration your preference, the complexity of the complaint. It is up to the mediator to decide what would be the most effective use time. 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. The process is led by the mediator who may use different processes, taking into consideration what the parties are most comfortable with, or interested in, to try and resolve the complaint. The process usually starts with a discussion of possible settlement options resulting in 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 up to 60 days to try and resolve the issues. 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 Pre-Investigation Mediation period. However, the mediator can conclude the mediation at any point.
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 mediation?
Complaints are resolved more quickly through mediation than if they go through an investigation which may result in a public adjudication hearing which sometimes leaves both parties unsatisfied. An investigation may also result in a complaint being dismissed. Mediation is not adversarial and you are able to keep your issues confidential.
What if the Complainant and Respondent are unable to come to a settlement?
Either party or the mediator may decide during this process that it would not be productive to proceed with mediation. If this happens, a formal reply to the complaint is requested from the Respondent, and the complaint is assigned to an investigator.
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 can only make this request once during Pre-Investigation Mediation. The respondent puts their offer in writing. 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.
How does the Board decide if the offer is reasonable?
At this stage there has not yet been an investigation into the merits or validity of the complaint. It will only consider whether or not the Respondent’s offer adequately addresses the effect of the discrimination described in the complaint if all the allegations in the complaint were proven to be true at an adjudication hearing. The Board will not consider or weigh evidence. 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 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 Board decides the offer is not reasonable?
The complaint will be returned to the mediator who will determine if further mediation is appropriate and agreeable to both parties. In most cases further mediation will not be appropriate and the matter will be referred to an investigation.
It is common for the Board to determine that they cannot find the offer to be reasonable during this process because they do not yet have the benefit of evidence gathered during an investigation. This decision should not be taken as an indication that an investigation will find evidence in support of the allegations.
Can anything I say be used against me if the complaint is not resolved?
No. Mediation 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 in an investigation or 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 Pre-Investigation Mediation process, please speak with your mediator or visit our website for examples of mediated settlements: http://www.manitobahumanrights.ca//settlements.html