The Human Rights Commission realizes that there are other ways to resolve disputes. We can help parties try to resolve complaints on their own. Mediation is not about arguing who is right and who is wrong. It is about trying to find a creative solution to a problem. Mediation works well for everyone because:
- it is free
- it is confidential
- it is fast, easy, and informal
- it is not adversarial
- the parties are in control of the process
- it is a way to find a creative and restorative solution to a problem
The Human Rights Commission has its own mediator who knows about human rights law. The mediator also knows about the issues in the complaint. The Commission’s mediator does not represent either party and cannot give legal advice. The mediator helps to facilitate the conversation. Everything discussed at mediation is confidential.
Mediation can happen at any time during the complaint resolution process.
Pre-Complaint Mediation
Pre-complaint mediation happens before a Complaint Form gets served on the Respondent (or the person you are complaining about). Sometimes, complaints can be resolved easily through a quick phone call or meeting. In the pre-complaint process, we reach out to the parties and try to resolve the complaint before it goes any further.
Early Mediation
Early mediation happens once a Compliant Form gets served on the Respondent (the person you are complaining about).
Late Stage or Commission-Directed Mediation
The parties get a last chance to settle the complaint once it has been reviewed by the Commissioners and referred to a hearing. At this late stage, both parties and the mediator know more about the facts of the complaint. They also know that the complaint will go to a hearing if it cannot be resolved at mediation.
The mediator takes a more active role at Commission-directed mediation and can give their opinion on possible outcomes.
Preparing for a Mediation
Think about why resolving this complaint is important to you. What needs to happen for both parties to resolve the dispute?
For example:
- The Complainant needs a specific accommodation, such as a new desk at work, a ramp in their apartment building or time off work for a religious reason.
- The Complainant wants to stay at their job. They need the harasser to be moved from their immediate work area or they need the employer to make sure they comply with the Human Rights Act.
- The Complainant wants to find another job and move on. They need an apology or a letter of reference.
- The Complainant is looking for money to compensate for the injury to the dignity, feelings and self-respect (general damages).
- The Complainant lost money or had to spend money on certain items, such as lost income, increased rent or moving expenses (special damages).
The Complainant prepares a written proposal in advance of the mediation. The proposal form will let the Respondent know what the Complainant needs to happen to resolve the complaint.
The Respondent may respond to the proposal in advance of the mediation. Or the Respondent may want to discuss it at the actual mediation.
The mediator sets a date for the mediation and notifies the parties.
Before the mediation starts, the parties sign an Agreement to Participate in mediation. The agreement sets out the rules of mediation, the process to be followed and the role of the mediator. The parties agree to listen to each other and be respectful during the conversation.
The Mediation
Mediation can happen by email, phone, video or in person. The parties gets a chance to tell their side of the story. The mediator can also talk to each party separately and help them try to find a solution to the problem.
In some cases, the parties might agree to have the mediator tell them what they would do if they were the adjudicator. This is not meant to be legal advice or a binding decision. Instead, it is to encourage the parties to think about different ways to resolve the complaint.
This option might happen when:
- the mediator has enough information to give their opinion
- the complaint is simple and uncomplicated
- the settlement is in the range of reasonable outcomes
- the parties are not represented by lawyers or a lawyer or support person attends the mediation
- the facts are generally not in dispute
- there are few to no witnesses and credibility is not at issue
Drafting Settlement Agreements
The mediator can help draft a settlement agreement if the complaint is resolved. A settlement agreement outlines the terms agreed to by the parties. It also says that the terms are confidential and that it ends the dispute between the parties. However, a complaint can be re-opened if the terms of the agreement are not followed.
Each party is free to get independent legal advice before signing the agreement.
What happens if the parties are unable to reach an agreement?
The mediator will tell the parties what happens next. The complaint will either go to an investigation or a hearing, depending on where it is in the process. When this happens you do not lose your place in the queue.
The mediator will also discuss other procedural options like the Executive Director’s section 31 deferral and section 32 dismissal powers.
Commission staff will not have had any previous involvement in the file and will not be aware of anything that was said during mediation.
The parties can always return to mediation at any other time in the process.
Failure to Participate in Mediation
The parties have a responsibility to participate in the human rights process. They must attend and be prepared for mediation. A party must keep their contact information current and advise the Commission if they move or change phone numbers or email addresses.
A party can ask for more time to send in or respond to a proposal. The request must be made to the mediator who will inform the other side.
A party can change their mind about mediation. You must contact the mediator if this happens and let them know. The complaint will be transferred to a Human Rights Specialist for an investigation.
A complainant can also decide to withdraw their complaint. A complaint can be withdrawn verbally or in writing. If a complainant fails to participate in mediation we will assume they no longer want to continue. Their complaint will be considered withdrawn and the file closed.
Remedies in Human Rights Law
Remedies in human rights law try to put the Complainant in the position they would have been in if the alleged discriminatory action had not occurred. It is not intended to punish the Respondent. The mediator can give you more information about specific remedies and how to calculate them.
What are general damages?
General damages are typically awarded for injury to dignity, feelings and self-respect caused by the discrimination or harassment. In Newfoundland and Labrador general damages are generally not high:
- a Complainant who experienced harassment in the workplace: $5,000.00
- a Complainant who was denied a job because of their gender: $7,000.00
- a Complainant who was denied the use of a taxi service because of their service animal: $5,000.00
Some of the factors that may be considered when determining general damages are:
- the impact the discrimination had on you/li>
- how badly you were treated
- the vulnerability of the Complainant
- whether the discrimination happened one time or over a long period of time
What are special damages?
Special damages are intended to compensate you for money that you have lost or been forced to spend because of the discrimination or harassment (out-of-pocket expenses). You will need to provide receipts to prove your claim.
For example:
- If you lost your job because of discrimination, calculate the amount of earned income that you lost each week that you were unemployed. If you earned $10 per hour and you were off work for 10 weeks, you can ask for: $10 per hour x 35 hours per week x 10 weeks = $3,500
- If a landlord refused to rent an apartment to you for a discriminatory reason, and as a result, you had to rent a more expensive apartment, you can ask for the difference in rent for a reasonable period of time. If you were evicted for a discriminatory reason, you could also claim your moving costs (i.e. moving truck costs = $840.00). If the difference in rent is $200 per month, you can ask for: $200 X 4 months = $800
What are public interest remedies?
You can make proposals to change things for more people than just yourself. Public interest remedies are designed to prevent discrimination and harassment in the future. They can also be educational, giving others a better understanding of discrimination and harassment. The details of your complaint remain confidential.
Some specific public interest proposals can include:
- human rights education and training
- developing human rights policies and procedures
- elimination of workplace barriers for women, racialized people, members of the LGBTQ community or people with disabilities
- developing an internal human rights complaints procedure
- posting human rights information at work
- informing employees about their human rights obligations
- donating to a charity