By Kiana Blake
Alternative dispute resolution has garnered significantly more attention over the past two decades. Within Ontario, there is a Mandatory Mediation Program which applies to Toronto, Ottawa, and Windsor. Under this program, cases are referred to a mediator early in the litigation process to provide parties with an opportunity to discuss and possibly settle the issues in dispute. But what is mediation and why can it be a better alternative than litigation?
Mediation is a process by which individuals to resolve their disputes outside of court. As opposed to a judge, there is a mediator who serves as a neutral third party and facilitates a discussion to help the parties look for a mutually beneficial solution. The overall purpose of the mediator is not to select a “winner” by deciding a case or imposing a settlement, but rather to help the parties develop a creative solution together. Unlike going to court, which is inherently adversarial, the mediation process is considerably more collaborative. With the guidance of a mediator, parties can gain a better understanding of competing interests, negotiate with one another is a constructive manner and find a resolution that stems from common understanding and mutual agreement.
It is also very common to think of arbitration and mediation as relatively similar processes; however, they are quite different. During arbitration, the proceeding is more formal and structured than in a mediation session. Arbitrators are offered broad powers which allow them to control and direct the proceedings. Moreover, arbitrators are more in line with the role of a judge during litigation. An arbitrator has the power to decide issues of law relevant to the parties’ dispute, and then issue a binding decision. In situations where the possibility of receiving an unfavourable decision is a reality, working towards a mutually agreeable solution by way of mediation is a popular alternative to arbitration and litigation.
Like most options available to resolve legal disputes, there are many persuasive and valid arguments for mediation as well as a few cautions.
Pros of Mediation
- Cost-effective: It is certain that any trial will be expensive given the required costs (e.g. an attorney working for the length of the trial). Mediations, on the other hand, can resolve disputes well in advance of a case being filed in court. Moreover, mediation may typically last only three hours as opposed to spanning over several months or years. A meta-analysis conducted by the Department of Justice found that depending on the characteristics a of a mediation program, improvements in cost savings are likely to range around 30%. In in many cases, parties may opt to hire a mediator which is far less costly than hiring two lawyers.
- Greater control: During the mediation process, parties are able to control the outcome of their case. During litigation or arbitration, there is a risk of being surprised by a possibly unfair decision rendered by a judge or arbitrator. In mediation, parties work towards a mutually beneficial decision and must sign an agreement of the final decision.
- Positive impact on future relationship: Due to the collaborative nature of mediation, there is an opportunity to preserve the relationship between disputing parties. During mediation, both parties present their cases, discuss their issues and attempt to find a solution with the help of a neutral third party. Unlike litigation, there is the opportunity for direct communication between the parties if they so choose rather than solely relying on lawyers. This process is likely to prevent damage to the relationship as the goal is not a winner or loser, but a situation where everyone wins.
Cons of Mediation
- Power imbalance: Mediators must be aware of the power imbalances that are present during any given session. Like litigation and arbitration, there may be instances where one party has the benefit of a stronger bargaining power and thus the power is shifted in their favour. Mediators can use their skills and techniques to offset this imbalance and ensure that all voices are being heard equally.
- Unproductive: Mediation can be pointless if the parties are unwilling to negotiate. Mediations may also end up being more costly if it takes several sessions for the parties to reach some type of agreement. While mediations may be quicker than litigation, if an agreement is not reached at the end, engaging in the process would result in a waste of time. One way to mitigate such a result is to bring in a skilled mediator who has demonstrated an ability to facilitate a productive mediation session.
Overall, the mediation process demonstrates an alternative to litigation that is most likely to be cost-effective and user-friendly for parties seeking to resolve their disputes. With the neutral assistance of a mediator, people can work through their conflicts, achieve a common understanding and reach a mutual agreement. While there are drawbacks to mediation, it still remains one of the most popular forms of alternative dispute resolution.