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PHILIP KANIGAN has participated in intensive mediation courses and workshops sponsored by the Society of Notaries Public of BC, and is available to act as a MEDIATOR.
What is mediation?
Mediation is a process for resolving disputes. Two or more parties to a dispute meet and attempt, with the assistance of a mediator, to settle the matters in dispute. The mediation takes place in a private, informal setting, where the parties participate in the negotiation and design of the settlement agreement. The mediator is trained to help people settle conflicts collaboratively and has no decision-making power. The dispute is settled only if all of the parties agree to the settlement.
Traditionally, people have relied on the courts to resolve their legal disagreements. However, going through the court system can be time-consuming, expensive and confrontational.
Mediation is an alternative to going to court. In mediation, an impartial mediator helps to bring the parties involved in the dispute together and supports them in working out a solution in a non-confrontational setting.
Mediation can be used to resolve many different types of disputes, including disagreements involving contracts, debts, wills and estates, business, corporate or commercial claims, real property or construction disputes, wrongful dismissal and personal injury claims.
Mediation can also be extremely useful in family law cases.
Mediation can be faster and cheaper than going to court and, in many situations, you can reach a settlement that is acceptable to everyone involved.
Why mediate?
Cost - Time and money can be saved and emotional stress can be reduced through early resolution of the dispute.
Speed - Mediation can be arranged in a relatively short period of time and has the effect of bringing settlement negotiations "to a head" quite quickly.
Privacy - Mediation takes place in private and the details of the dispute and its resolution need not be publicly disclosed.
Control - Each of the parties maintains control of the dispute and its resolution because, unlike the trial process, the parties design the settlement and agree to live by it only if it is acceptable to them.
Informal atmosphere - The informal setting and atmosphere of mediation is conducive to productive communication between the parties. Many of the tensions and stresses of the adversarial process are avoided.
Separating the people from the problem - Very often in disputes, personal feelings or emotions become confused with substantive legal issues and play a powerful role in fueling litigation. The mediator helps to separate the personal dimension from the issues in dispute, reducing tension and making settlement more likely.
Preserving relationships - Many parties to a dispute must continue to deal with one another, either in business or otherwise, after the dispute is resolved. Mediation, because it tries to avoid polarizing the parties, can help to preserve a working relationship.
When should I consider using mediation?
While mediation cannot solve all legal disputes, it can be helpful in most cases. Although there are no set rules about what can or cannot be mediated, mediation is more appropriate in some situations than others.
Consider mediation when:
- ˇ the people involved in the dispute are at least willing to meet and try to settle it
- ˇ parties want a flexible and informal process
- ˇ no party can get away with simply ignoring the problem
- ˇ other options for resolving the dispute are unacceptable
- ˇ each party needs something from the other
- ˇ both parties have an interest in maintaining a relationship (business or otherwise) after the dispute is resolved
- ˇ the dispute involves more than two people or businesses
- ˇ the case is complex and requires a creative solution
- ˇ the parties would prefer to settle the dispute in private
- ˇ there are clear issues to be resolved, such as those involving money, property, behaviour, rights or licences.
- Mediation is probably not appropriate when:
- ˇ the parties to the dispute do not have the power to change things or to resolve the problem
- ˇ any of the parties are completely unwilling to consider working toward compromise
- ˇ a party is challenging the validity of a law
- ˇ an issue of law needs to be settled to govern future legal cases or serve as a legal precedent
- ˇ people not directly involved in the dispute may be unreasonably affected by the outcome of mediation
- ˇ the issue is one that should be debated in the public eye
- ˇ there is fear of violence between any of the parties.
- You need not be confident that the case will settle in order to go to mediation. All that is needed is the willingness to sit down and talk. Settlement rates in mediation are quite high and cases often settle even when parties are initially far apart and pessimistic about resolving the dispute outside of court.
What does a mediator do?
Mediators are specially trained to help people work together to reach a resolution to a dispute that is acceptable to everyone involved.
There are no universally accepted certification programs for mediators, and mediators come from many different backgrounds. Before hiring a mediator you should ask for information about their training and experience.
Mediators are impartial and unbiased. They do not have the power to make decisions about the case or impose a resolution. Instead, their role is to ensure that the discussion remains focused, organized and respectful. They are experts in making negotiations work.
A mediator will:
- ˇ establish ground rules for respectful conduct
- ˇ structure and manage the negotiation process
- ˇ help clarify the facts and issues
- ˇ help the parties analyze what they need out of a resolution and help them to generate options to resolve their dispute
- ˇ keep lines of communication open and discussions on track
- ˇ be a sounding board, innovator and reality tester.
- Most mediations are conducted informally in an office setting. Everyone involved in the dispute sits around a table with the mediator. Depending upon the kind and complexity of the issues, mediations are booked anywhere from two hours to two days. A great many commercial mediations resolve in about four to six hours.
- Who needs to be involved in the mediation?
The mediator and all the parties involved in the legal dispute must attend the mediation.
The other people who might attend depend, in part, on the issues being mediated. It’s important to ensure that everyone who has the authority to reach an agreement is there.
Some of the other people you may wish to have at the mediation include:
- ˇ you may seek the advice of your lawyer before, during or after the mediation.
- ˇ A friend or family member might attend to provide you with support.
- ˇ It might be useful to have someone attend who is an expert in the subject that the dispute is about.
- ˇ If insurance is involved, you might need someone from the insurance company to attend.
- ˇ If anyone involved in the dispute is an incorporated company, then the person representing the company must attend, and should have the authority to settle the case on behalf of the company.
- All the parties to the mediation should agree about the rules for the involvement of others before beginning the mediation.
How do I initiate mediation?
First, you need to see if the other side is interested. Mediation is a relatively new process and it is not always well understood. You should not be surprised or discouraged if the other people involved in the disagreement start out less than enthusiastic about the idea of mediation.
Here are some steps you can take:
- ˇ Give them, or send them a printed copy of this document with the proposal that you discuss the possibility of mediation.
- ˇ If a lawsuit has been commenced or if you are receiving advice on the dispute from a lawyer, discuss your interest in mediation with the lawyer and have him or her raise it as a possibility with the other side.
- ˇ Approach a mediator who will, for a fee, contact everyone involved in the dispute and inform them of the benefits of mediation while encouraging them to take part.
- It is important to understand the differences between mediation and other kinds of dispute resolution and to consider if your dispute is appropriate for mediation.
Once there is an agreement to try mediation, all the people involved in the dispute will have to agree on the selection of a mediator. The mediator will work with everyone to reach an agreement about how the process will happen. Everyone will need to agree on the ground rules and payment of fees. The agreement to mediate will be in writing.
If the people involved in the disagreement refuse to try mediation, then you will have to find a different way to resolve the dispute.
How do we choose a mediator?
Choosing a mediator is a key part of the mediation and all parties to the dispute must agree on the mediator.
The mediator must not have any personal or business involvement with any of the people involved in the dispute. While it is often very helpful, it is not always necessary that the mediator have expertise in the subject matter of the dispute. The mediator’s expertise is in helping to manage the negotiation process.
There are no universally recognized certification processes for mediators, and mediators have different backgrounds and training. Mediators should be able to provide you with information about their training and experience. It’s a good idea to ask for résumés and references and to contact more than one mediator before making a decision.
After you have agreed on a mediator, everyone participating will want to sign an agreement setting out the ground rules for the mediation. The agreement to mediate will address important issues including information sharing, confidentiality and fees. All the people involved in the dispute should receive a copy of the agreement to mediate.
What is included in an Agreement to Mediate?
Once those involved in a dispute agree to mediate, a written agreement will usually be made between the mediator and the parties, setting out the rules and procedures to be followed in the mediation. It is usually signed before or at the first mediation session.Individual mediators often have their own form of agreement, but most forms include:
- ˇ Parties - The names of all persons involved in the dispute.
- ˇ Subject - A very general statement of what the dispute is about.
- ˇ Goals - What you are trying to accomplish in the mediation.
- ˇ Mediator’s role - The neutral and impartial role of the mediator.
- ˇ Confidentiality - Agreement that details discussed at the mediation cannot be used in court and that the mediator cannot be required to testify. The general rule is that negotiations in mediation are off the record. Records made during the mediation are confidential but original documents brought to the mediation to support an argument may later be used in court (the rules of court decide what is admissible as evidence if a legal dispute proceeds to court).
- ˇ Full disclosure - All relevant information will be made available to everyone involved in the mediation. Often, it is most effective to agree to the exchange of information before the first mediation session.
- ˇ Involvement of lawyers - Agreement that parties may attend the mediation with legal counsel or that they have the option to obtain independent legal advice before committing to an agreement.
- ˇ Fees and costs - Agreement regarding how much the mediator will be paid, what the other costs will be, and who will pay.
- ˇ Voluntariness and ending the mediation - Agreement that participation in the mediation is voluntary and that any party, or the mediator, may terminate the mediation.
- How much does mediation cost?
The cost of mediation varies, depending upon who the mediator is and how long the mediation takes. Experienced, legally trained mediators typically charge from $125 to $225 an hour, and these rates are sometimes negotiable. Mediators who are not legally trained often fall within the same range or, on occasion, charge less. Private mediation service providers will offer a full range of services, including setting up, planning, and carrying out mediations, for a flat rate of about $800 per party (plus GST) for a four-hour mediation.
The cost of mediation is usually shared equally by the parties participating in the mediation, but the agreement to mediate can provide for any other arrangement. Sometimes other arrangements are negotiable as part of the final settlement.
.AGREEMENTS FOLLOWING MEDIATION
Where a settlement is reached in the dispute , the parties and their counsel will formalize the terms of the settlement agreement as soon as possible, either in written agreement or court order.
The mediator does not act as legal counsel for any party during the mediation . Each party is encouraged to secure independent legal advice to ensure that legal rights and obligations , and the consequences of any potential settlement are fully understood.
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