Mediation

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In this situation, both parties attend mediation with one professional. Here, both lawyers and both clients attend a meeting chaired by a mediator. Although it sounds expensive, the cost of it depends on a few factors. Mediators want a consultation with both parties in advance, then there will be one, two, three or more sessions, then an agreement is drafted and the agreement is reviewed by two lawyers with their respective clients. There may be changes to the agreement.

A settlement meeting is a one time event, set for several hours. We all have all of the information we need. We go and listen to each other and come up with an agreement that we can all say yes to. We sign it that day.

Mediation

in Family Law

It is important to pick the right mediator.

It is an unregulated field and anyone can call themselves a mediator. If the mediator is not qualified, the quality of agreement that is produced through mediation may not be satisfactory.

We provide several options regarding mediation so that you have your best chance of settling the matter to your advantage.

What it is

Simply put, mediation is negotiation between disputing parties, assisted by a neutral party. While the mediator is not empowered to impose a settlement, the mediator's presence alters the dynamics of the negotiation and often helps shape the final settlement.

The Canadian Bar Association defines mediation as “the intervention into a dispute or negotiation by an acceptable, impartial and neutral third party who has no decision making power, to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute.” Canadian Bar Association, Task Force Report on ADR in Canada, 1989, 15.

Successful mediations result in a signed agreement or contract which prescribes the future behaviour of the parties; this is often called a memorandum of understanding. Such an agreement has the force of a contract and, when signed, becomes binding.

Characteristics

Voluntary: No party is forced to use a mediator, nor are they forced to agree to a particular settlement.
Non-Coercive: The mediator does not decide for the parties, but helps them make their own decision.
Assisted Negotiation: The mediator's role is to be an impartial third party who helps the parties reach a fair and mutually acceptable settlement. The mediator may provide relationship-building and procedural assistance. Moreover, the mediator may also provide substantive options to the parties.
Informal: The proceedings of a mediation are more relaxed and informal than those of a court or an arbitration. There are no prescribed rules of procedure and few rules other than those agreed to by the parties themselves.
Confidential: Generally, mediation is described as a confidential process. It is up to the parties to jointly establish any limits. If it is decided that the mediation should be confidential, the parties and the mediator should sign a clause to that effect.

How to use Mediation

Conducted properly, mediation can allow all parties involved to move away from legal concepts such as fault and instead, allow for a sharing of people's perceptions and experiences and a determination of each party's actual needs and interests. Such an outcome can often do more to truly resolve the problems or perceived problems which led to the dispute than any formal hearing.

During a mediation, both the parties and the mediator have certain responsibilities. The parties must attend, as requested, all mediation sessions and participate in the process in good faith. The mediator should remain dispassionate and avoid becoming partial to one party or view. Further, if expressly agreed, all statements and disclosures made and information and documents provided to the mediator are confidential, subject to application of the Access to Information Act and Privacy Act.

Concerns

As in many other processes, there is concern about accountability and authority to settle.
Although most mediations require that the disputing parties bear the costs of mediation equally, in some instances one party has paid more than an equal share. However, this raises a concern that, by so doing, the party which is paying less would be less committed to the mediation process.

Advantages

Mediation is particularly useful when the disputing parties need or desire to maintain an ongoing relationship. The consensual process in mediation allows parties to avoid the adversarial elements of litigation which often make it impossible to continue a productive relationship after the settlement.
Mediation is a creative approach to dispute resolution which is not governed by strict rules of procedure. This allows the parties to design a process which suits their needs and encourages a consensual, rather than an adversarial approach.
The presence of a mediator allows disputants to explore settlement options openly thereby allowing the mediator to become privy to both the interests and positions of the parties.
Mediation is particularly advantageous in complex cases which involve numerous issues. Because of the flexibility of the process, the mediator can suggest compromise settlements on different issues, thus allowing for various settlement options which are not limited to legal remedies.
Since mediations are almost invariably private, subject to the application of the Access to Information Act and Privacy Act, the process is appropriate if confidentiality is considered necessary.
In general, a mediated settlement can be reached far quicker than a litigated one; accordingly, if the time to settle is short and prospects for settlement are reasonable, mediation can be the more appropriate process. Furthermore, the final outcome will likely meet both parties' needs and interests better because they will be the ones who define the terms of the final agreement.
Similarly, due to the speed and informality of a mediation, the costs are generally considerably less than litigation. This is of importance both to corporate parties who wish to keep costs down and to parties who otherwise might not be able to afford the cost of the court process.
The presence of the third-party neutral allows for a controlled dialogue which is useful if previous negotiations have broken down or if the issue being mediated sparks strong emotions.
It is a general rule that the costs of mediation will be borne equally by all parties. Therefore, both parties have an equal stake in the outcome and a sense of ownership.

Disadvantages

Since parties to a mediation meet face to face, there is concern, particularly in cases involving harassment, that there might be a power imbalance between the parties. For example, if if one party is the victim of domestic violence, she might not be able to confront the abuser as a person with an equal voice at the mediation sessions. In such a case, strategies to mitigate the power imbalance may be used.
Due to its private, non-adjudicative nature, mediation cannot produce legal precedents.
A strong-willed mediator can exercise too much control over the mediation and affect the eventual resolution.
The lack of a binding third-party decision, might encourage a defendant to agree to a mediation, but not fully cooperate, in an attempt to delay a resolution of the dispute.