Brent Rathgeber, QC

Arbitration & Mediation

Mediation

Mediation is an alternative dispute resolution process, where the parties retain a neutral third party to help reach a resolution.  A mediator may, but does not need to be, a lawyer. When a lawyer acts as a mediator, he may provide general information about the law and legal process, but he does not represent either party and cannot provide legal advice.  The mediator guides the process to get the parties talking with each other and ultimately to resolve their problem.

Mediation may be used whether or not the parties are represented by counsel.  Mediation is a non-adversarial attempt at conflict resolution. The mediation process involves exchanging information, identifying issues, getting the parties to move off of their positions to identify their needs and interests, brainstorming options and finally, negotiating an agreement. When legal advice is required and if and when a settlement agreement is reached, each party must obtain legal counsel.  In matrimonial matters, Independent Legal Advice must be obtained by both parties to draft and sign the agreement. 

The Mediator’s role is not to force a solution on the parties. His or her role is to: 

  • facilitate communication between the parties;
  • assist the parties in narrowing the issues and then focusing on them;
  • help the parties generate options for resolution.

The parties themselves are responsible for determining the outcome. The process is private, informal, flexible, voluntary and non-binding.

In Evaluative Mediation, the mediator assumes a directive approach emphasizing the parties’ bottom lines.  By determining the WATNA-Worst Alternative to a Negotiated Agreement and the BATNA-Best Alternative to a Negotiated Agreement, the parties can focus on their bottom lines.  The mediator assesses the strengths and weaknesses of each side and may, when asked to, offer an opinion but won’t impose a solution.

In Facilitative or Interest Based Mediation, the mediator will guide a process emphasizing communication and understanding. In such a process, the mediator does not offer solutions or opinions but will help the parties exchange proposals before evaluating them.

A mediator’s training includes advanced classes in effective communication.  By asking probing questions in a non-judgmental manner, the trained mediator is able to help the parties explain their needs in a manner that better allows the other party to understand those interests and needs. 

Advantages of Mediation:

  • Increased satisfaction, since the resolution is created by the parties and not imposed by a Court (win/win solutions);
  • Timeliness:  A mediator can be retained in a short period o time. Litigation takes months, even years to complete;
  • Cost: Time, money and emotional toil are all saved through early resolution of the dispute;
  • Confidential:  Mediation is a private process. Participants generally all sign a confidentiality agreement. Courts are very public and open to the media;
  • Informal setting:  Mediation usually occurs in a board room or comfortable meeting room, which encourages communication between the parties;
  • Preservation of the Relationship: A mediated settlement takes into account the needs of both parties, which contributes to a positive future relationship. Litigation destroys relationships;
  • Being Heard:  Parties have full opportunity to explain themselves and vent when necessary. Venting frequently allows a party to move away from the emotional side of the dispute and towards constructive dialogue and resolution;
  • Voluntary Process:  The process works because the parties have chosen to participate.

Disadvantages of Mediation:

  • Voluntary Process:  Parties can withdraw if unhappy with the process or the progress;
  • Not binding: the process can be derailed when parties seek independent legal advice.