Traditionally Canadians have resolved disputes using the courts. Litigation is a process that is time consuming, expensive, and in which there can only be one winner and the solution is imposed by a judge. Court cases often take 2 to 3 years to resolve. The participants are embittered and often impoverished by the process. The remedies available to a court to impose are limited by precedent or statute, and may not address fully the wishes of a party. In some cases, a party may have no choice but to use the courts, and the expensive and time consuming procedures that are set out in the Rules of Court.
I believe that there are inexpensive alternatives to resolving conflict. Mediation, or assisted negotiation is an effective tool that can help people resolve problems. Often the participation of a trained knowledgeable independent party, a mediator, can help eliminate or neutralize the hostility or anger which is a major part of conflict. A good mediator will have the parties focus on all the issues that are relevant to settle a dispute. There are very few disputes which cannot be settled by mediation. Typically those disputes are ones where there is a strong element of distrust between the parties, or where the parties really want to fight it out in front of a judge.
Mediation has been used very frequently in settling labour disputes, construction disputes, and in other commercial settings where there is a need to preserve an ongoing relationship, and settle a dispute quickly. It has been used regularly to settle family disputes involving custody and access of children and division of property, and maintenance. It is used in disputes between the Insurance Corporation of British Columbia and motorists to settle issues of compensation for injuries, and fault in motor vehicle accident cases.
What is mediation?
Mediation is a process of negotiation in which a knowledgeable, trained neutral independent person, a mediator, assists two or more persons in settling a dispute by defining and resolving issues of concern to the participants. The mediator guides the parties through the process. Unlike an arbitrator who gives a decision based upon evidence presented at a hearing, a mediator does not decide on the solution for the parties. A party may withdraw from mediation at any time.
Unlike a court case, a mediation is a private and confidential setting, and the only persons present, are persons agreed to by the parties. The proceedings are “without prejudice” which means that if the parties are unable to reach agreement, they can still go to court and have a judge order a result. The discussions are ‘off the record’, and there are no minutes or transcript of the meeting. Likely the mediator, cannot be forced to attend court as a witness for either party, and testify to matters discussed during the course of a negotiation.
The mediator usually meets with both of the parties in one room. The parties’ lawyers may or may not be present. This is called joint session. A mediator generally asks each party to give a summary of how they see the issues. From this information the mediator identifies all the relevant issues. The parties then have an opportunity to exchange information, discuss the issues and explore solutions. It is common from time to time throughout a mediation for the mediator to meet privately with each of the parties to identify areas with potential for movement, or for the parties to consult amongst themselves to evaluate information. The separate meetings are called caucusing. At the end of a mediation, a mediator may confirm the terms of the settlement reached by letter.
A mediation can be scheduled at an early time, even a weekend or evening, to meet the convenience of the parties. One avoids expensive delay. Parties negotiate their interests, and it is possible for both parties to get a solution in which both maximize their interests. Because the parties participate in a creating the solution, it may lead to a more lasting and satisfactory settlement. Because the problem is solved quickly and in an informal atmosphere the parties can get on with their lives, and preserve existing relationships.
When to mediate?
Generally one should mediate as early as possible to save costs and time. Sometimes it is necessary to gather information to understand the issues, and this may occur more effectively before mediation if the issues are complex. Often mediation is conducted after a law suit has been commenced, documents exchanged and after the parties have attended at examinations for discovery. There is no one answer to this question.
Are lawyers involved?
Some parties have their lawyers present at mediations, and the lawyers do most of the talking. In other situations, parties appear in person and without lawyers and seek the advice of their lawyers before going to mediation, or occasionally during mediation. In many cases the lawyers are involved in documenting the terms of settlement agreed to by the parties. It is up to a party going to mediation whether to bring a lawyer, or other advisor with them. Lawyers can be of great assistance during a mediation as they are often skilled negotiators.
How Long Does a Mediation Take?
The length of time varies from mediation to mediation.
How successful are mediations?
Approximately 80% of the disputes in which mediation is used are settled at mediation. Some settle after mediation. Even those that don’t result in a settlement can be successful in that the persons involved more fully understand the up side and down side of their problem, and can appreciation more fully the other side’s views. This can lead to saving of time at trial if a trial is necessary.
A mediation can be more successful than a trial because at a mediation the parties are able to agree freely and be as creative as they wish in making their solutions. Courts are often limited by precedent in the types of remedies they will grant.
Where do mediations take place?
A mediation can take place in any informal setting, a hotel suite, or the board room of your business. I use my Campbell River office for small mediation sessions. Two rooms are generally required, one for meeting in joint session, and one for private discussions. It is a good idea to have refreshments nearby. It is also good to avoid distractions, for example calls on your cellular phone, while at mediation.
How much does it cost to mediate?
Typically a 8 hour session, including preliminary matters and reporting the results costs $3,000, plus the cost of any disbursements and applicable taxes (GST). These costs are generally split between the parties.