By Sidura Ludwig
People always win when they talk out their problems, says Ontario Rental Housing Tribunal mediator Walter Williams. And he wishes more cases seen by the tribunal would go to mediation.
“In mediation we try to build relationships rather than tear them apart,” Williams says.
Mediation involves the tenant and landlord sitting down with a mediator and working out a deal they can both live with.
Currently, Williams estimates about 20 per cent of landlord-tenant disputes seen by the tribunal are successfully settled through mediation. The rest are resolved through trial-like adjudication.
The problem, he says, is in the timing. Mediation is only offered the day of the hearing — when the tribunal’s three mediators find out which applications are being heard.
“When it’s come so far that someone has made an application, they’re more likely to go down the path of adjudication,” Williams says.
However, he points out, if people knew about mediation before their tribunal dates, they might be more willing to give it a try.
On a Tuesday afternoon, Williams enters the hearing room 10 minutes before the first adjudication begins. He approaches the landlords and tenants waiting in the seats and asks them whether they would like to try mediation to work out their problems.
One tenant is two months behind in her rent payment. Her landlord has filed a complaint with the tribunal. They agree to sit down with Williams.
“I want to make an arrangement and pay up totally,” the tenant says.
She explains that she can give half of what she owes by the end of the week and the other half by the end of the month.
After 10 minutes of mediation, the tenant and landlord have agreed on a payment schedule.
“If you miss any one of the payments, then the landlord can make a request for an order to terminate the tenancy,” Williams advises the tenant. “This is not a way (of you) getting more time.”
The tenant says she understands. If she makes her payments, then the case is successfully resolved through mediation.
Before the housing tribunal was set up three years ago, landlords and tenants had to take their disputes to court. Formal mediation first became available in 1995 as a pilot project. Since 1998, mediators have officially been a part of the tribunal.
“I’m an impartial, neutral third party,” says Williams, who woked as an adjudicator in 1992 and an adjudicator/mediator in 1995. “I’m here to facilitate discussion between the landlord and the tenant.”
Williams says that unlike adjudication, mediation isn’t adversarial.
“In an adversarial hearing, one party is trying to do better than the other. The aim is to discredit or disprove the other party,” he says.
Sometimes parties come having prepared for a hearing and are not willing to change gears and sit down for mediation.
“People have geared up for hearings, they’ve put expense into preparation and brought in witnesses,” he says.
And other times, they’ve already tried mediation. When one party doesn’t hold up his or her end of the bargain, they come back to have their case heard by an adjudicator.
Before the hearing, Williams recognizes a landlord. A few weeks earlier, he helped him mediate an issue with a tenant. The landlord is back because the tenant didn’t honour the deal.
Williams approaches the landlord before the afternoon hearing to offer him mediation but the man shakes his head.
“No, I don’t want to see you today. I tried it once already,” he says.
Williams nods his head and moves on to try and encourage someone else to give mediation a try.
When mediation works, Williams says, it saves time for everyone involved.
“There are no witnesses, and there’s less formality (than there is in adjudication),” he says. “A lot of things can be worked out over the phone. There’s more flexibility.”
There’s also flexibility in how the issues are resolved. With a hearing, the adjudicator has to rule according to the Tenant Protection Act. But that’s not so with mediation.
“One big advantage is that the act recognizes the ability of tribunal mediators to assist parties in coming to a resolution that contravenes the act,” Williams says. “It’s meant to provide flexibility to a resolution.”
He uses the tenant behind in her rent payments as an example. According to the act, the landlord has the right to the rent money immediately. But mediation “allows the tenant to make a repayment schedule they feel comfortable with,” Williams says.
Mediation also allows parties to deal with the reasons behind an application.
“Adjudication is heavy about the rights under legislation. Mediation is about the interests.”
Williams cautions people about judging the success of mediation. It’s not always about coming to an agreement, he says.
“Is that what’s important, or is it giving people the opportunity to see where the other person is coming from?”
Last year, for his own interest, Williams conducted an informal survey on the effects of mediations. He found that out of 50 responses of those involved in a face-to-face mediation, only two were unhappy with the process.
“Most felt that some good came out of going through the process.
“In mediation, both parties walk away having won something,” Williams says. “We try to have a win-win situation.”