Most lawyers will advise clients that Court should always be the last resort.  When direct negotiations are not likely to succeed, one alternative is Mediation.

Mediation offers a process to people involved in a dispute to meet with an independent, neutral third party to discuss the problem, their interests and potential solutions. Mediation allows parties the opportunity to participate and to jointly craft a solution that is tailored their individual circumstances. No one imposes a decision or makes any determination as to “right” or “wrong”. Each party has the opportunity to express their concerns, tell their stories and attempt to work out an agreement.

Mediation is more flexible, expeditious and cost-effective than litigation. Mediation is common-place in all types of disputes, including family, business, estates, construction, employment and workplace.  Many contracts and agreements now include a clause that requires the parties to mediate a dispute prior to resorting to litigation. People are now seeing that litigation should be used only as a last resort if and when all reasonable, less expensive and more expeditious avenues are exhausted.

There are some fairly standard process steps that mediations go through.  Parties should ensure that they understand the process and they know what to expect before they attend the mediation.  Chances of a successful mediation, of resolving the dispute or at least resolving some of the issues between the parties, are enhanced by taking the time to prepare for mediation.  Knowing some tips for effective mediation will also enhance the effectiveness of the mediation.

The Role of the Mediator

The mediator facilitates a discussion between the parties to enable them to find a solution to the dispute.  The mediator is a neutral third party; and is not a decision maker in the process.  The mediator’s role is to ensure that everyone has the opportunity to talk, voice their concerns and their interests and participate in brainstorming solutions.

The mediator cannot impose a settlement or decide the case; the mediator is not a judge or an arbitrator.  The mediator’s role is to help the parties create their own solution to the dispute. Agreements reached through mediation are more likely to be respected by the parties as the parties have entered into it willingly, rather than having it imposed upon them by a court.

A mediator is an independent, trained facilitator.   He or she facilitates the discussion between the parties to ensure all conversation is focused on solutions and options for resolution.    Mediation can occur between the parties alone or the parties can bring their counsel to have lawyer-assisted mediation.   Parties can agree to mediate on only one or two specific issues, or on all issues.  The mediator’s role is to facilitate the dialogue between the parties, and to assist the parties in reaching agreement on their own resolutions.   The mediator will never impose a solution; however, the mediator may let one party or the other or both, if they are being too extreme or too unrealistic in their expectations.

As a trained and experienced mediator, I maintain a neutral, independent and impartial role.  I also ensure that the dialogue between the parties is open, honest, respectful, future-focused and productive in that it is directed to the issues and resolutions.  Once an agreement is reached, that agreement is transferred onto paper and signed by the parties with their lawyers.

Mediation can be an inexpensive method to resolve outstanding issues.   There is no way to predict how long mediation will take; it depends on the circumstances of the parties, their personalities and the number of issues and concerns.  However, with that in mind, there is also no way to predict how long negotiations or court applications will take to reach resolution or the total cost.   Mediation is usually a faster and less expensive approach to resolving disputes; and it has the bonus of being very economical when compared to the number of steps and total legal cost involved in going to a trial.

Some of the advantages that can be realized by mediation over court applications and lawyer-assisted negotiations are:

  • Costs are usually lower and shared equally (for example, with lawyer-assisted negotiations or court applications – each of you pay your lawyer each time the lawyers talk to each other and then talk to you; with mediation you are paying one mediator, and you are splitting that cost; and, you talk directly to each other, so the total time to get a message and reply is also significantly shortened);
  • You are able to arrive at tailor-made agreements that you designed and that meet your specific needs;
  • The Agreement is more likely to be respected by both parties, because you were involved in creating the Agreement (as opposed to a judge’s order that neither party really wanted);
  • The mediation process can proceed as quickly as you like it to and as soon as the mediator is available; there is no waiting for judges, court dates, lawyer’s schedules, etc.
  • You are able to preserve your privacy; if you make court applications, and have a court judgment, that is on the public record and anyone can seek it out and read it.

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