We previously blogged on mandatory mediation under rule 75.1 of the Rules of Civil Procedure, and also on the power of the court to direct parties to attend mediation in jurisdictions where it is not mandatory pursuant to rule 75.06(3.1)(b). Click here to read further.
Many people dismiss mediation as they do not see it as an effective tool in dispute resolution. They may reject it under the misguided impression that mediation is nothing but an informal process and a friendly chat with a mediator. Another common worry is the cost associated with mediation, and the fact that a resolution in mediation is never a guarantee. Having said that, even an unresolved mediation can nonetheless be considered a successful mediation. Bear with me…
The Role of a Mediator
The Department of Justice of Canada has put together a comprehensive Dispute Resolution Reference Guide, which guide outlines most major components of a mediation.
The role of a mediator varies depending on the nature of the dispute and even on the degree of emotions present at the mediation. A mediator can be a completely neutral person, or they can take a much more hands-on approach in moulding a settlement. A skilled mediator will employ a creative approach to generating settlement options through brainstorming and dialogue.
As discussed in the Guide, a mediator may attempt to:
- Encourage exchanges of information
- Help the parties understand each other’s views
- Let the parties know that their concerns are understood
- Promote a productive level of emotional expression
- Lay out the differences in perceptions and interests
- Identify and narrow issues
- Help parties realistically evaluate alternatives to settlement
- Suggest that the parties take breaks when negotiations reach an impasse
- Encourage flexibility and creativity
- Shift the focus from past to future
- Shift the focus from one of blame to a creative exchange between the parties
- Hold caucuses with each disputant if there is deadlock or a problem
- Propose solutions that meet the fundamental interests of all parties
Failed Mediation
Before attending mediation, a party may feel very strongly about their case as they may not have fully considered the strengths of an opposing party. They may over-estimate the strength of their own arguments and in turn, they may miscalculate the likelihood of success during a trial. This can be a costly mistake.
Through mediation, the parties will often learn new information which allows them to better understand how to achieve a settlement. They may reach a partial settlement on some of the issues, or no settlement at all. A partial settlement will nevertheless save time and money from having to litigate these issues in open court. Alternatively, the parties may walk away form mediation, but may continue to negotiate privately and reach resolution anyway.
At the end of the day, a mediation will likely be worth the time. A decision not to settle at mediation may still be the right decision, but that does not mean the mediation failed. At the very least, mediation is a private and expedited way to dispute resolution which is significantly more cost-effective than pursing all issues though the judicial system. When appropriate, litigants should always consider putting their best foot forward and attending mediation with an open mind.
Thank you for reading.