Going to trial to have a judge hear evidence and decide your case may be one of the most expensive ways to resolve your dispute. Before starting a court case you may wish to consider other options, such as mediation. Mediation is a form of alternative dispute resolution. It is another way for people to settle disputes or lawsuits outside of court.
The purpose of mediation is not to determine who wins and who loses, but to develop creative solutions to disputes in a way that is not possible at a trial. In mediation, a neutral third party – the mediator – helps the disputing parties look for a solution that works for them. If you and the other party cannot reach an agreement, a mediator may be able to help improve communication and reach an agreement.
Mediation has a structure, timetable and dynamics that “ordinary” negotiation lacks. One of the hallmarks of mediation is that the process is strictly confidential. The mediator must inform the parties that communications between them during the intake discussions and the mediation process are to be private and confidential.
The mediator’s role is to help the people involved in a dispute to communicate and negotiate with each other in a constructive manner, to gain a better understanding of the interests of all parties, and to find a resolution based on common understanding and mutual agreement. A mediator will encourage compromise. Mediators do not decide cases or impose settlements. The mediator does not take sides or make decisions for the parties. Mediators cannot give you legal advice. In some cases, mediators may express a view on what might be a fair or reasonable settlement, generally where all the parties agree that the mediator may do so.
Mediators come from different professional backgrounds. They may be lawyers, paralegals, psychologists, or financial professionals, like accountants.
Mediators use various techniques to open, or improve, dialogue between disputants, aiming to help the parties reach an agreement on the disputed matter. Much depends on the mediator’s skill and training.
A good mediator is trained in conflict resolution and in working with difficult situations. The good mediator is likely to work as much with the emotional aspects and relationship aspects of a case as he or she is to work on the “topical” issues of the matter. The mediator, as a neutral, gives no legal advice, but guides the parties through the problem solving process. The mediator may or may not suggest alternative solutions to the dispute. Whether he or she offers advice or not, the trained mediator helps the parties think “outside of the box” for possible solutions to the dispute, thus enabling the parties to find the avenue to dispute resolution that suits them best.
The length of time of a mediation session, and the number of sessions required, will depend on many factors, such as:
- Number and type of issues to be mediated
- Amount of conflict between the parties
- Degree of communication and cooperation among the parties
The mediation session may be held at any location that is convenient and acceptable to the parties, including the mediator’s office and the office of one of the parties or one of the lawyers.
Before the mediation session begins, the mediator explains the mediation process and reviews the terms of the mediation, which may be set out in a written “agreement to mediate”. Although mediation is an informal process, the mediator structures the discussion. All parties have a chance to present their side of the story, to explain what is important to them and to ask questions. The mediator will help parties to reach a fair and lasting settlement. Each party is encouraged to get independent legal advice before and throughout the mediation process. It is very important for you to know about your legal rights and obligations and how the law affects your issues. Each party should review the final mediated agreement with his or her lawyer before signing. If you do not reach an agreement during mediation, you can start a court case or continue your court case.
There is no doubt confidentiality contributes to the success and integrity of the mediation process. Steps put in place during mediation to help ensure this privacy include;
- The mediation session is conducted behind closed doors.
- Outsiders can only observe proceedings with both parties consent.
- No recording of the transcript is kept.
Parties may share the cost of a mediation session. Parties pay mediators directly for their services. A mediation session is generally less expensive than suing in court.
Benefits of Mediation
Several reasons exist for choosing mediation over a trial. Mediation has many benefits:
- It allows the parties to work out their own solutions and often leads to resolutions that are tailored to the needs of all parties. Generally, the best solution to a problem is one worked out by the people themselves.
- Mediation can take less time and be more flexible.
- Mediation may be cheaper and faster way to resolve a dispute than going to court.
- Many people find mediation more satisfying than a trial because they play an active role in resolving their dispute, rather than having a solution determined by a judge.
- Confidentiality lies at the heart of mediation. It is imperative for parties to trust the process. Parties in mediation may speak more openly than in court.
- In situations where the parties have an ongoing relationship, mediation is particularly helpful because it promotes cooperative problem solving and improved communication.
- The information shared during a mediation session can be kept confidential and not available to media or other outside parties.
The mediated agreement is fully enforceable in a court of law.
Mediation is Voluntary
Mediation is voluntary if it happens before a court case starts. You and the other party must be willing to try to work out a solution. You must both agree to the mediation.
Some of the types of disputes or decision-making that often go to mediation include the following:
- Wrongful dismissal
- Workplace discrimination
- Workplace harassment
- Labor management
- Landlord and tenant matters
- Homeowners’ associations
- Contracts of any kind
- Professional malpractice
- Personal injury
- Non-profit organizations
- Faith communities
- Auto insurance claims
- Accident benefits
The eldest and widest field of mediation applies to business and commerce. However, the mediation process does not apply to family mediation.
To know if mediation services could be used in your case, ask a paralegal or a lawyer. They can ensure you are in compliance with all appropriate rules. Remember, a paralegal or a lawyer has to be licensed by the Law Society of Upper Canada.