- What is mediation?
- What are the advantages to mediating over pursuing litigation (going to court)?
- Is mediation always preferable to litigation?
- What is the difference between arbitration and mediation?
- What should I look for in a mediator?
- How long does mediation take?
- What is “mandatory mediation”?
- Do I need a lawyer for mediation?
- How much does mediation cost?
- Who pays the costs of mediation?
WHAT IS MEDIATION?
Mediation is an informal process in which an impartial, neutral third party assists in solving a dispute or concluding a negotiation. The mediator has no legal power to impose a decision or solution on the parties, but rather facilitates the disputing parties in voluntarily reaching their own mutually acceptable settlement of issues. The mediator achieves this by structuring the negotiation, maintaining the channels of communication, articulating the needs of each party, identifying issues, and, if requested, by making recommendations on disputed issues.
The mediation process may involve legal counsel. Open communication between the parties as well as between their counsel is encouraged. Generally, discussions during mediation are kept confidential and are not to be used against the parties in legal proceedings.
WHAT ARE THE ADVANTAGES TO MEDIATING OVER PURSUING LITIGATION (GOING TO COURT)?
The advantages of mediation include the following:
MORE EFFICIENT – mediated disputes usually conclude in a matter of days or weeks instead of taking months or often years.
ECONOMICAL- beyond the obvious out-of-pocket savings on legal expenses, there is a tremendous beneficial saving in personal productivity that would otherwise be lost while the parties spend enormous amounts of time and emotional energy attempting to resolve the dispute.
CONFIDENTIALITY – instead of being part of a public record, a mediated dispute can remain as private and confidential as the parties desire.
MORE CONTROL – Parties are not subject to a decision rigidly imposed by a court according to prescribed schedules. Instead, a mediated dispute can generate customized solutions appropriate to the needs of the parties involved.
PRESERVATION OF RELATIONSHIP – the adversarial nature of litigation often destroys an already fragile relationship between the disputing parties. Through mediation, the parties can work together to strengthen the relationship without the lingering animosity or bitterness associated with litigation.
IS MEDIATION ALWAYS PREFERABLE TO LITIGATION?
No. There are some instances in which mediation may not be suitable, and traditional litigation is preferable. In disputes that are likely to have a high precedent value, it may be important to have the dispute decided by a public court, forum or agency. Examples include human rights cases with national implications or cases that interpret a new provision of amended or new legislation. Such cases need to be decided in the public sector in order to provide a benchmark for future cases, whether those future cases are resolved in the courts or through mediation.
There are a number of other questions that parties may wish to consider when determining whether mediation is appropriate. They include:
Is there a possibility of an ongoing relationship among the parties?
Do the parties have a history of extreme hostility?
How many parties to the dispute? (four or less is preferred)
How seriously do the parties desire settlement?
Are there external pressures to settle (time, money, unpredictable outcomes, etc.)?
And, probably most importantly,
Will all the parties agree to mediate?
WHAT IS THE DIFFERENCE BETWEEN ARBITRATION AND MEDIATION?
Arbitration is a process whereby a mutually acceptable, neutral third party makes a decision on the merits of a case, after an informal hearing which usually includes the presentation of evidence and oral arguments. There are a number of different types of arbitration processes, depending on factors such as:
- binding or non-binding;
- voluntary or compulsory;
- private agreement or required by statute;
- single arbitrator or a panel.
Arbitration differs from mediation in that the parties will obtain a decision (often referred to as an “award”) from the arbitrator, whereas mediation can result in no agreement/resolution being reached. Generally, arbitration is more formal and more time consuming than mediation, but is certainly less so than litigation.
It is advisable that arbitrators have a strong substantive knowledge of the subject matters they are adjudicating. By contrast, in the mediation community there is considerable debate about whether the mediator must be an expert in the subject matter he or she is mediating. Most often it is the process, rather than prior immersion in the specialized content of the dispute, that determines a successful outcome.
WHAT SHOULD I LOOK FOR IN A MEDIATOR?
Education: University degrees in the fields of business, law, social work, and/or psychology are the most common educational backgrounds.
Mediators should also have pursued continuing education in the field of mediation and alternative dispute resolution.
Experience: Although it may be useful for a mediator to have expertise in the subject area of a dispute, it is more important the she/he has had practical experience facilitating between disputing parties in a mediation setting. Service on certain mediation rosters may provide evidence of experience. However, roster membership may be a misleading indicator of experience since many mediation rosters are infrequently used.
Personality: Even those mediators who appear most qualified on paper (credentials and experience) may be poor facilitators. A good mediator is someone who can create an atmosphere conducive to cooperation and voluntary agreement. In dealing with the parties, the mediator should be patient, understanding, and an excellent listener. In managing the process, the mediator should be creative, both flexible and firm (as appropriate), and inspire the confidence of the parties.
Professional Certification: The only nationally recognized designation for general mediators in Canada is that of CHARTERED MEDIATOR (C.Med.) granted by the ADR Institute of Canada. For more information on the C.Med. requirements and application process, see the ADR Institute of Canada web site found at http://www.adrcanada.ca/education/mediator.html#membership
Professional Associations: In Ontario, the most notable associations for mediators are the ADR Institute of Ontario and the ADR Section of the Ontario Bar Association.
HOW LONG DOES MEDIATION TAKE?
A mediation session can take place at a date as early as can be agreed upon between the parties. Depending on the nature of the dispute, it is generally advisable to allow at least 3 hours for the first session. Some mediations resolve in the first session in less than 3 hours. Other disputes require multiple sessions to come to an agreement. The process is flexible and is subject to the wishes of the parties. If any parties believe that the mediation is not productive, they may choose to terminate the mediation at any time.
WHAT IS “MANDATORY MEDIATION”?
The phrase “mandatory mediation” appears to be a contradiction in terms since mediation is generally, by definition, a voluntary process. “Mandatory” pertains to which body has referred the parties to mediation. Once at the mediation session, any resolution reached by the parties is still on a voluntary or consensual basis. One such mandatory mediation scheme is the Ontario Mandatory Mediation Program (OMMP). For more information on the OMMP, click Mandatory Mediation or the Office of the Attorney General athttp://www.attorneygeneral.jus.gov.on.ca/html/SERV/sermed.htm
DO I NEED A LAWYER FOR MEDIATION?
Although it is not necessary to have a lawyer present at the mediation session, it is usually advisable and recommended by the mediator for the parties to get independent legal advice prior to entering a final agreement. When the parties attend the mediation session without their legal counsel, it may be wise to have their lawyers available by telephone should some legal issues arise.
Lawyers are often involved after the mediation session is completed to draft the details of terms that were agreed upon at the session. Lawyers may be needed depending on the nature of the dispute. For interpersonal disputes involving few, if any, legal issues, retaining a lawyer may not be necessary at all. In other matters, it may be useful for the parties to attend the first session without lawyers and the final session with lawyers. The process is generally flexible. For mediations conducted under the Ontario Mandatory Mediation Program, the attendance of lawyers at the mediation session is required under Rule 24.1.
HOW MUCH DOES MEDIATION COST?
Mediation costs can generally be grouped into three categories: i) mediator fees, ii) other mediation associated expenses, and iii) expenses incurred by the parties.
Mediator’s fees generally consist of an hourly and/or daily rate for preparation, administration and the actual mediation session(s). Hourly rates can range from $100 to $800 per hour and daily rates can be in the range of $600 to $5,000 per day. Most mediators have cancellation fees as well. In addition to fees, there are likely to be additional costs that go to the mediation facility. Many mediators also charge the parties for travel time, and travel expenses such as transportation, meals and accommodation. The parties may retain lawyers, or expert witnesses. The parties may also incur costs for expert reports or professional appraisals.
WHO PAYS THE COSTS OF MEDIATION?
The mediator’s fees and expenses are generally split evenly between the parties unless agreed otherwise. If the parties retain lawyers or other outside professionals, the parties themselves generally assume such costs.