As the costs of litigation have increased dramatically over the last ten years and the traditional legal system has become overloaded, leading to long delays in bringing matters to conclusion, individuals and businesses have looked for other, quicker and less expensive ways to solve their disputes. Alternative Dispute Resolution, often called ADR, really means a number of ways by which disputes are dealt with outside the court process. The most common forms of ADR are negotiation, mediation and arbitration.
So what is mediation?
Mediation is a voluntary process of cooperative problem solving in which a neutral third party, with special training and skills, helps individuals to work out mutually acceptable, agreements. The mediator is selected by agreement between the parties.
It is important to remember that the mediator does not reach the solution, the parties do, with the mediator’s help.
Although conflict is difficult to deal with, and emotions often run high, you should come to mediation with an honest desire to reach a settlement that is fair to both parties and workable in practice. Participants in mediation must be prepared to be flexible in moving away from their initial positions to seek solutions which meet as many of their mutual interests as possible.
Mediation is voluntary, and either party is free to withdraw from mediation any time during the process. In fact, unless there is an existing contract between the parties which requires mediation if a dispute arises, or if required as part of a mandated court procedure, a party need not participate in mediation.
In some circumstances, the mediator may also end the process, if he or she believes that mediation is not appropriate or useful for the parties.
Although the process is voluntary, agreements reached through mediation are as binding and valid as any other contract.
The Mediation Process
After the five step process is complete, the mediator will meet with both parties in joint sessions. Each side explains their view of the dispute and provides background to the information. In commercial and most business mediations, the parties’ lawyers can be present during mediation sessions, and will advise the parties throughout the mediation process. The lawyers, while not delivering argument, co-operate with the mediator and help their clients work through the issues.
Occasionally, the mediator may wish to meet individually with each party and either party may also request an individual meeting with the mediator.
Sometimes, to resolve the dispute, it may be necessary to have the participation of experts or others who have a stake in the outcome. The involvement of any non-parties should be discussed and agreed to in advance of the actual mediation session and can be dealt with in the c-justice system using requests.
When the parties reach a tentative agreement, the mediator will write up a memorandum of understanding that each party and, if represented, their counsel will review. The parties are not bound to any proposed agreement arising out of the mediation process until the agreement has been fully reviewed by their legal counsel and signed by the parties.
The Mediator’s Role
The mediator is an impartial third party neutral who is not on either party’s side and has no personal interest in the outcome of the dispute. The mediator is a facilitator who helps the parties to negotiate their own terms of settlement. Although the mediator may be a lawyer, he or she will not act as legal counsel for either party to the dispute. At most, the lawyer/mediator may provide neutral legal information to the parties and may flag issues for them to discuss with their independent lawyers and between each other. The mediator is not an Arbitrator or Judge. He or she will not decide for the parties how the issues brought to mediation should be resolved, or what is fair. Arbitration is the appropriate forum for this. The mediator’s role is to help the parties to reach their own decisions based on their own individual sense of fairness.
The Lawyer’s Role
Each party is expected have had independent legal advice about their legal rights and obligations so that they can make informed choices in mediation. Although you may choose to depart from the a strict legal position, for commercial considerations or because of the facts and circumstances of your own case, this should only be done with full knowledge of your legal rights.
The role of counsel is to advise the client of his or her legal rights and obligations and to act as “coach” for that party during mediation process. Counsel also advises on various issues as they arise during mediation, reviews the memorandum of understanding and approves/writes any draft or other formal agreements or documents required to carry out the terms of the settlement.
It is up to the parties to make their own decisions, using information from counsel as one of many factors in the decision making process.
Confidentiality and Mediation
It is generally up to the parties to decide whether their mediation process is confidential or not. The default rule in our mediation contract is that all mediations are confidential. This helps to facilitate complete disclosure since they seek to reach a settlement based on all relevant information about the dispute. Because of this, it is important that all discussions take place in mediation on an “off the record” or “without prejudice” basis.
The mediator, unless otherwise agreed in writing by the parties, will not voluntarily disclose the substance of any of the discussions which take place in mediation, nor the content of any documents prepared or exchanged during the mediation process. For mediation to be a confidential process, each party must sign an agreement not to call the mediator to testify in any subsequent legal proceeding between them.
Although the mediation process is intended by all parties to be confidential, the mediator cannot absolutely guarantee such confidentiality. The mediator may, under limited circumstances, be required by law to disclose information.
Sometimes the parties to a mediation may jointly choose to waive the confidentiality of the mediation sessions. If the parties are unable to reach agreement on all issues brought to mediation, the mediator may, if part of the mediation agreement, give his or her non-binding opinion on the terms of a possible settlement. The mediator’s suggestions and recommendations for settlement can take the form of a written report to the parties and their lawyers which may be used in any subsequent legal proceedings. The mediator may be called as a neutral to testify at court and be cross-examined upon his or her written report, but will not be a witness for either party.
The Benefits of Mediation
Mediation has a high rate of success which some studies place at over 80%. Although not for every dispute, participants find that mediation identifies the real issues in a dispute in a more efficient way than court proceedings. Mediation is also less damaging to on-going personal and business relationships and the process is usually, but not always, faster and less expensive than traditional litigation.
Mediation will not always result in a settlement and in that case, you are still free to seek other remedies through arbitration or court. Even in these cases, final costs are often reduced as the parties may have agreed on solutions to some of the issues involved in their dispute.
Of those individuals who reach agreement through mediation, over two-thirds agree that the settlement was fair and that they were satisfied with both the process and the results. By minimizing the atmosphere of conflict and providing a safe and more reasonable environment, people are able to focus their energy in reaching creative and reasonable solutions to their disputes.
Mediation should be considered if:
- The parties want to settle.
- The parties have an on-going relationship and/or the possibility of future dealings.
- Confidentiality is important.
- You want the opportunity to consider the issues outside the traditional legal framework.
- The parties need a commercial solution which could not be obtained through litigation or arbitration.
- The parties are only considering litigation or arbitration because they have reached an impasse in negotiations.
Mediation should not be considered if:
- There is a significant power imbalance between parties.
- The other party or counsel is abusive personality.
- It could be a fishing expedition or disguised examination for discovery.
- The other side just wants to delay.
- There are third party rights affected.