Before attempting to mediate your legal disputes, it’s important to understand how mediation’s unique procedural framework make it an attractive means of alternative dispute resolution.
What is mediation?
Mediation is a form of dispute resolution in which two or more parties to a dispute meet with a mediator (often referred to as a neutral third party) to help the parties reach an agreement. In order for any settlement to be reached, the parties must voluntarily agree to it. The process is always confidential: if the dispute isn’t resolved, nothing said or done during the mediation can be used against the other party later in litigation. This mediation privilege is intended to facilitate settlement by fostering open communication between the parties and with the mediator.
Anyone can agree to mediate a dispute at any time, whether or not there is a contract in place that calls for mediation as a dispute resolution step before filing a demand for arbitration or commencing litigation proceedings.
During the mediation process, each party to the dispute has a chance to make their case and to hear the positions of the other parties. The mediator’s job is not to make a decision for the parties, but to assist them in exploring the strengths and weaknesses of their own cases and to identify possible solutions so as to enable them to reach a settlement agreement. Importantly, the mediator does not decide who is right or wrong and has no authority to impose a settlement on the parties. Unlike arbitration, the decision-making power rests in the hands of the parties themselves. A skilled mediator should be able to help unlock negotiations that have become deadlocked and keep the parties focused on finding a solution.
What are the advantages to mediation?
Mediation can be a powerful tool in resolving disputes. The parties are able to control the outcome of the case without having to worry about being surprised by what a judge or jury might do. Furthermore, the parties are heard by a neutral party, who can provide an independent evaluation of the case. The mediator will often point out weaknesses that may not have been recognized or appreciated before. The mediator can also provide a dose of reality to a difficult client as to their true position in the case.
Mediation can also be a powerful discovery tool. The opportunity for the parties and their legal representatives to spend several hours with the opposing side(s) can provide insight into what is truly important to parties that may not have been communicated in previous discussions.
Finally, mediation is a process that is, by design, meant to be less formal and more flexible than traditional ligation. This flexibility and informality tend to make the dispute resolution process faster, cheaper, and overall more efficient when compared to traditional litigation.
Some of the reasons mediation can be advantageous include:
- Certainty of results as parties are involved in the decisions and can structure a practical settlement to their needs;
- Allows direct communication between the opposing parties;
- Avoids a win/lose or “all or nothing” decision;
- Remedies available are much broader than traditional legal remedies;
- Privacy and confidentiality of proceedings and of results;
- Available at an earlier time than traditional litigation;
- Potential to save time and money;
- Test strengths, theories and strategies of your case;
- Opportunity to influence how the opposing side views the case;
- Demonstrates a willingness to negotiate;
- The chance of appeal is minimal, in contrast to litigation; and
- Mediation can help maintain a continuing relationship with the other party or parties involved in the dispute.
What are the drawbacks to mediation?
One of the main disadvantages of mediation is a lack of formal rules, which can make it difficult for parties in conflict to reach a compromise. As the mediator has no power to issue judgements or awards, a successful mediation hinges exclusively on the parties’ ability to come to terms on their own accord. If the parties are entrenched in their positions and refuse to negotiate, mediation can be a fruitless (and highly frustrating) endeavour.
Another disadvantage is the fact that any important social or legal points will be lost as the terms of any settlement agreement the parties may reach will be confidential. Also, as it sometimes can take several mediations for the parties to reach some type of agreement, there is the potential that significant costs can be incurred by the parties.
Another disadvantage of mediation is that it can be difficult to ensure that the settlement is fair to all parties. For example, if one party has access to more resources or is savvier about the mediation process, they may be able to get the other party(s) to agree to a settlement that isn’t necessarily in their best interests.
Litigation and court trials can be very expensive and risky propositions. There is no certainty that a trial will bring a fair or just ruling for a case, nor is there certainty that once the trial is over, the case will be over. Cases sometimes stretch long into the future as appeals are filed and motions heard. While mediation might not always be the best method for parties to resolve their disputes, the clear advantages of mediation as an alternative to traditional litigation make it a very popular and effective option.
Our team at Hugill & Ip has extensive experience in dealing with Mediations and other Dispute Resolution issues – so kindly get in touch with us to find out how we can help.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.