What is Mediation?
Mediation is a voluntary, non-binding process using a neutral third party to guide the parties toward a mutually beneficial resolution of their dispute. Unlike an arbitrator, who can impose a decision, the mediator helps the parties to decide for themselves whether to settle and on what terms. The mediator acts as a catalyst for the process, helping parties reach agreement by identifying issues, exploring possible bases for agreement and the consequences of not settling and encouraging each party to accommodate the interest of the other parties. It is a cooperative, interest-based approach to conflict resolution.
Benefits of Mediation
Mediation has several advantages, particularly when utilized early in in the life of a lawsuit:
- Because more than 90% of all cases settle, early mediation enables parties to a dispute to evaluate a case early and encourages the early resolution of the matter before undue time, energy and money are expended and before litigation takes on a life of its own.
- Mediation is voluntary; nothing happens without the parties' consent. The parties retain a high degree of control. Each party retains the right to withdraw at any time.
- Mediation does not involve a decision imposed by a judge or an arbitrator. Rather, the parties to a dispute, guided by the mediator, craft their own solutions which effectively meet their needs and interests.
- All communications in mediation are privileged and cannot be used as evidence. The parties control disclosure to the mediator and whether and to what extent matters disclosed to the mediator may be disclosed to other participants in the process.
- Mediation allows for creative solutions to the parties' dispute, often allowing all parties to come away from the mediation process with benefits unavailable through litigation or arbitration. Parties work together to "make the pie bigger".
- The use of a mediator promotes reasonable dialogue by taking the bravado and posturing out of the settlement discussions. The emphasis is on working together to solve the joint problem.
- In the less than 10% of cases that do not settle in the mediation process, the parties benefit from refined discovery, early witness evaluation and streamlined trial preparation reducing litigation costs significantly.
Mediation Benefits Lawyers
Mediation is consistent with the goals and economics of a lawyer's practice. For plaintiff's counsel, the earlier a case resolves the earlier the plaintiff and plaintiff's counsel get compensated. For defense counsel, mediation represents a commitment to take a proactive, cost- effective approach to solve the client's problem. A commitment to mediation is an effective marketing tool. The lawyer is now a "problem solver" committed to producing cost-effective results through mediation that meet the interests and needs of clients. This represents a competitive advantage in the market and will lead to more files and more clients.
Mediation Compared with Arbitration
Arbitration involves selection of a third party who acts as a decision maker whose decision can, or in cases of binding arbitration, must be accepted by the parties. Typically, the arbitrator has a hearing in which the parties present evidence after which the arbitrator hands down an award. Arbitration can be a beneficial tool for resolving disputes if the parties insist on having a third party come up with a solution for them. However, like litigation, arbitration is an adversarial and adjudicative process. The parties relinquish all control and, because they are not active participants in the decision-making process as they are in mediation, they may be dissatisfied with the result.
Mediation Compared with Pre-Trials
In a pre-trial, typically the lawyers informally present their cases to a judge who will try to assist the parties in assessing the strengths and weaknesses of their case. While many cases do settle through pre-trials, one disadvantage is the fact that pre-trials usually occurs late in the process shortly before trial and after the parties have invested much of themselves and their resources in positions from which they cannot easily back away. Another disadvantage is that the judge's "evaluation" of the case often gives leverage to one side and makes that side more intransigent and the other side more skeptical of the process. Instead of moving the litigants toward common ground, the judge's evaluation can drive them farther apart.
In Canada and the United States experience has show that about 80% of the cases in mediation settle on the first day! An additional 10% settle within a month of the initial mediation session. The result is a low cost, high benefit investment for all involved. Mediation works! Make a commitment to let it work for you.
Reduced Cost of Conflict Management
A good conflict management principal to follow is to use lower cost processes where the disputants have greater control (i.e. Negotiation, Mediation) before turning to more costly processes where the parties have less control and experience greater hostility (Arbitration, Litigation)
If you want to bring a matter forward for mediation, simply call Agree and provide the particulars by phone.
Agree Mediators are members of ADR Institute of Ontario.