Who needs a mediator?
Anybody involved in a dispute can benefit from mediation: a mediator can assist and help to resolve, temper, or stream-line the dispute between the parties. The parties in need of this help can be self-represented, or they can already have legal representation (a lawyer or a para-legal, for instance). The mediator is often a lawyer, like Mr. David M. José (“David”), but a mediator will not give legal advice while mediating – David will remain neutral throughout, and in no circumstance will David legally represent any of the parties during a mediation session. As one can envision, disputes between parties can be over just about anything: a dispute arising over a divorce or separation, or employment matters, or a car accident, or a slip and fall, or a dog bite, or a faulty product, or a breach of contract, or defamation of character, or a land dispute, or professional negligence, etc – the list is endless.
If you have any of these feelings, mediation is likely right for you:
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- My case seems to be dragging on, and I don’t see an end in sight;
- If I could get the lawyers to focus on my case, I am sure it will resolve;
- The other side just doesn’t seem to understand my position, and it would be helpful to have a forum to explain why I feel the way I do;
- I am really concerned that if I don’t get this case resolved soon, it is going to cost me a lot of money in legal fees, which I want to avoid;
- I have been told my case is not worth pursuing, but before I throw-in-the-towel, I want to take a shot at getting some kind of concession or compensation from the other side;
- I am told that the court cannot give me a judgment for what I am looking for (ie: an apology, a retraction, an award for future benefits, etc), and that is the type of resolution that I want;
- If I could just get this dispute behind me, I could move on;
- The uncertainty of not knowing whether I am going to have to pay something, or whether I am going to receive something, is making it hard for me to plan my future;
- I really need to get some money now, but I don’t want to look desperate because then I will get nothing from the other side.
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Do I Need a Lawyer or Paralegal at Mediation?
No. It is not necessary for you to have a lawyer or paralegal represent you at mediation in a civil dispute between parties. However, this said, it is most common for parties to have legal representation at mediation, whether it be a paralegal or a lawyer.
Why Mediation?
Mediation presents with myriad of benefits:
It is far less costly than a trial or a hearing. Trials, for example, can cost the parties hundred’s of thousand dollars, depending on the complexity and the length of the trial or hearing– a mediation will cost a party a fraction of that – often less than $1,000.00.
It is confidential. The mediation process is confidential, which means your "dirty laundry" is not exposed to the world, which happens if you take your case to trial or a hearing, where their decisions are often digested in a public registry. Except for a few exceptions, all matters (e.g. documents and statements) disclosed during mediation remains confidential. This means that statements that you make at your mediation cannot be raised or used as evidence against you at any subsequent trial or hearing. David is not a compellable witness at any hearing or trial of your dispute. Mediation is confidential in order to encourage the parties to have full and frank discussions with a view to possible settlement. All the parties and their representatives (if any) who participate in mediation must sign a confidentiality agreement before the mediation commences. At the conclusion of the mediation, nothing about your case is publicized by David. In some instances, however, David may have to advise the court that the mediation was successful, or unsuccessful, but in those instances, no further information about what was discussed at the mediation is disclosed. If the case resolves, the parties can include, as part of the negotiations, whether they are at liberty to disclose the outcome to the public. In family law disputes, the governing legislation allows the parties to decide whether they want the mediator to prepare a report for the court (ie: outlining what the issues were, the positions being taken by the parties on those issues, the compromises that were made, and what key elements seem to be preventing the parties from resolving all of their disputes), but again, if the parties decide against this, David would simply advise the court of what issues settled, and what issues didn’t settle, at the mediation.
You remain in control. Unlike a trial or a hearing, where a judge, adjudicator, arbitrator or in some cases a jury (of six strangers) makes the decision for you (whether favourable or unfavourable), mediation gives the parties the control to tailor a solution that works for them, without relinquishing that control to others.
Why does mediation work?
In simple terms, it works because mediation is a time when everyone sets aside their time exclusively to work on resolving the dispute between them – there are no distractions – no getting on the phone to work on ten other files or focus on other matters.
Also, it is a time when the parties get to hear directly from the other side, and to “listen” and “hear,” what the other side has to say – why each feels the way they do – why each feels they are right – why each feels the argument of the other side is wrong or non-persuasive. It can sometimes be cathartic to get things “off-your-chest,” or sometimes it gives you a different perspective about the dispute you never had before.
In some cases, the mediation is the first venue for the decision maker behind a big company (ie: the person writing the settlement cheque) to actually meet and interact with the other party, and this engagement can often make a big difference in bridging gaps.
Do I have to mediate?
The answer is generally no, but sometimes yes. In some instances mediation is mandatory. Certain courts, for instance, require mediation to be held before they will allow the parties to have a trial. In Ontario, parties to civil cases commenced in Windsor, Toronto, and Ottawa generally must have at least one mediation, but there are some exceptions, like family law cases which are excluded from mandatory mediation. Under Rule 75.1, contested estates, trusts and substitute decisions matters are referred to mandatory mediation.
In some instances, a party can demand another party to mediate, regardless of where the lawsuit was started. In Ontario, for example, a party to a personal injury dispute arising out of an automobile accident, regardless of where they live, and regardless of where they may have started their lawsuit, can force mediation by making a formal request of the other party to mediate their dispute under section 258.6 of the Insurance Act, R.S.O. 1990 c.I.8, and once that request is made, the responding party must participate in mediation (at the cost of the insurance company), or face possible court sanction if they don’t participate.
Aside from those instances where the court mandates mediation, or there is a legislative provision that allows one party to demand the other party to mediate, mediation is generally a voluntary process.
