Frequently Asked Questions - About Mediation Services for Claim Negotiations
Why mediation services for claims negotiations?
In June 2007, Canada announced its Specific Claims Action Plan, a decisive new approach to speed up the resolution of specific claims in order to provide justice to First Nations and certainty for all Canadians. As part of these overall efforts, a new approach is being put in place to ensure better access to mediation for the parties involved in these negotiations.
Negotiations continue to be Canada's first choice for resolving claims. Mediation is a cost-effective tool that can help parties in a dispute find a common solution. Canada recognizes that this tool should be used more often to support negotiations and supports increasing its use.
What is mediation?
Mediation is an important and valuable mechanism to assist the parties in a dispute to overcome obstacles or impasses and reach negotiated agreements.
Mediators employ various tools, including facilitated communications, problem-solving and option-building to help the negotiating parties to effectively and efficiently reach mutually acceptable agreements and settlements. Mediators do not have the authority to impose binding solutions, but instead encourage the parties to resolve issues collaboratively.
Who will provide these mediation services?
These services will be provided by experienced and independent professional mediators with extensive knowledge of dispute resolution. Four regional rosters are being developed through an open, competitive Request-for-Proposals procurement process. Having these new rosters in place will make it easier and faster for individual negotiating tables to engage the services of independent mediators.
When will mediation services be used?
Mediation services will be used only when all parties to the negotiation voluntarily agree to enlist those services. The decision to seek help from a mediator is a joint one to be made by the parties involved in the negotiation.
How will negotiating tables get access to mediators?
The parties to the individual negotiation table will jointly select a mediator from the roster and will jointly determine the scope of the services to be provided. The mediator will report directly to the negotiation table. The principles of independence, impartiality, accessibility and partnership will guide the mediation process.
Can only specific claim tables access these mediation services?
These mediation services will be primarily available for specific claim negotiating tables on an "as-requested" basis. However, these services may also be accessed, on a case-by-case basis, by Canada and Aboriginal parties at individual negotiating tables for comprehensive claims, self-government and other agreements.
What if only one of the parties (the First Nation, for example) wants mediation?
All parties to the negotiation need to agree to seek assistance from a mediator. This needs to be a joint decision by the parties involved in the negotiation.
What about cases where the provincial/territorial governments are involved in claim negotiations?
Participation in mediation is voluntary and needs to be agreed upon by all parties to a negotiation in order to succeed. If mediation is proposed in a case where a provincial/territorial government is a party to a negotiating table, their participation would be sought in the process. If the negotiating table wishes to select a mediator from the roster, the provincial/territorial government would be consulted on the selection of the mediator and in the determination of the scope of services to be provided.
At which stages of a dispute can mediation be used?
Mediation can be used at any stage in the negotiations where the parties have reached an impasse or disagree on an issue that could be overcome with the help of a mediator. This option can be chosen as the first step towards seeking a resolution of the dispute after any negotiations conducted by the parties alone have failed or they have encountered a specific obstacle. The decision to use mediation is a voluntary one.
When will these services be available?
The goal is to have this service available to negotiation tables by fall 2011.
Who will pay the cost?
As a general rule, Canada will pay the costs of the mediator's services. If a province/territorial government is party to the negotiations, a cost-sharing arrangement may be considered.
Which negotiation tables need mediation? Are there individual tables that you expect will use these services?
It is up to the negotiation tables themselves to jointly determine first whether they need mediation, and then to agree on the selection of a mediator and the scope of the mediation. This would include a set time period and the specific issues for the mediation. The mediator would report directly to the negotiating table.
Most claim negotiations are successful.
Will Canada trigger mediation as a de facto means of meeting the 3 year time frame for negotiating specific claim settlements?
No. The decision to seek help from a mediator is a joint one to be made by the parties involved in the negotiation – the First Nation and Canada. It is an option that can now be pursued if negotiations have stalled and both parties agree that mediation is needed to help them find a common solution.
This new approach to mediation delivers on a commitment made in 2007 in Canada's Specific Claims Action Plan. First Nations asked for a faster process with better access to mediation. Canada is acting to make it easier and faster for negotiating tables to engage the services of independent mediators.
What are the benefits of settling claims through negotiation?
The Government of Canada believes that the best way to resolve outstanding claims is through negotiated settlements. Negotiated agreements lead to "win-win" solutions that balance the interests of all Canadians and bring closure, benefits and certainty to all concerned.
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