Many parties choose mediation as an alternative to settling a legal dispute in court. Unlike more adversarial forms of alternative dispute resolution, such as arbitration, mediation provides a collaborative environment to help parties negotiate a settlement. If you have a legal matter or lawsuit, you should learn more about how mediation works to determine whether it can help you resolve your case while avoiding the time and expense of trial.
What Is Mediation?
In mediation, parties in a legal dispute turn to a neutral third party called a mediator to help them come to a settlement agreement. Mediators do not decide any issues in a legal dispute. Instead, the mediator focuses on helping parties define the issues in dispute, understand their legal positions, relative strengths and weaknesses, and share their respective concerns. Mediators may also propose details for a settlement based on the parties’ needs and goals. Although many people refer to mediation in the context of a legal matter, mediation also occurs in personal or inter-organizational disputes, including in employment, educational/religious institutions, and professional regulatory bodies.
Canadian Laws Governing Mediation
Because both parties to a dispute must agree to participate in mediation, they can agree to any rules to govern their mediation. Various private organizations, such as the Alternative Dispute Resolution Institute of Canada, publish standard rules for parties to use to govern their mediation. In a court case, mediation may also have to follow the court’s Rules of Court and the applicable provincial or federal court act, especially when courts order parties in a lawsuit to attempt mediation.
How Do Parties Enter Mediation?
In many cases, parties enter mediation through an agreement to mediate. Parties with a contractual relationship may include a provision in their contract that allows or requires the parties to pursue mediation of any disputes arising from their relationship. However, any parties in a legal dispute can enter an agreement to participate in mediation. In the mediation agreement, the parties should address critical issues such as selecting the mediator or establishing a process to select a mediator, splitting the costs of the mediation, and setting other ground rules for the mediation.
Occasionally, courts may strongly encourage parties in a civil action to attempt mediation to resolve their dispute. Courts overseeing family law cases may encourage parties to pursue mediation, especially to resolve emotionally charged disputes over child custody or support.
What Occurs During the Mediation Process?
Because the parties control the mediation process, what occurs during mediation will differ from case to case depending on the parties’ goals and interests and the mediator’s style. During mediation, you can expect the mediator to sit down with you to listen to your side of the story and to do the same with the opposing side. Once the mediator has the complete picture of the parties’ dispute, the mediator can begin helping the parties listen to each other and understand each other’s perspectives.
The mediator will help the parties identify the scope of their dispute along with their common concerns and goals. Finding common ground can help the parties begin to craft a settlement agreement. The mediator will explore settlement options with the parties based on their objectives and needs, including supporting them as they develop solutions to the dispute.
Mediation may occur over one or more sessions, depending on the parties’ agreement and the mediator’s recommendation for additional sessions. If the parties settle, the mediator will review the terms of the proposed settlement to ensure it reflects the parties’ agreement.
The Role of Lawyers in Mediation
The parties may have legal counsel as they participate in mediation. Because the mediator cannot offer legal advice, each party should have a lawyer to help evaluate the legal implications of any discussed settlement terms. Before mediation, a lawyer can explain the advantages and disadvantages of mediation so their client can evaluate the decision to participate. A lawyer can also help their client identify their needs and goals, including differentiating between “must haves” and “would like.”
During mediation, lawyers must balance their role as advocates for their client’s interests with their role as problem-solvers for their clients. In the advocacy role, a lawyer can present the client’s legal case and explain their needs and goals for the mediation. However, as a problem-solver, a lawyer should encourage their client to consider the other side’s perspective, providing an honest assessment of the strengths and weaknesses of the other side’s legal case. Lawyers can also identify potential solutions and settlement terms that serve the client’s goals and needs. Lawyers should review the terms of any proposed settlement agreement to ensure it serves the client’s best interest.
Do You Have to Reach a Settlement in Mediation?
Because it’s a voluntary process, entering into mediation does not obligate parties to continue until they settle their case. A party may walk away from mediation at any time. However, mediators may encourage parties to continue with the process if they believe they have made substantial progress toward a settlement, and further mediation sessions will likely produce an agreement.
Enforcing a Mediated Settlement Agreement
Once parties reach a proposed settlement agreement in mediation, they must reduce their agreement to a final written document for each party to sign. However, sometimes parties have second thoughts or experience “buyer’s remorse” after mediation and try to renegotiate the terms of a proposed settlement or back out of the settlement entirely. When a party tries to back out of a settlement reached in mediation, the other party may have legal recourse to enforce the settlement. Courts may choose to enforce a settlement in principle negotiated at mediation when the settlement contains all necessary material terms, the parties had a “meeting of minds” at the mediation, the party backing out has gotten cold feet, and the party trying to enforce the settlement relied upon the agreement.
When a mediation settles a lawsuit, the parties may need to submit their settlement agreement to the court for its approval or to incorporate the agreement into the court’s judgment.
Contact a Lawyer Today to Discuss the Suitability of Mediation for Your Legal Dispute
If you have a legal dispute, mediation can help you negotiate a settlement with the opposing party and avoid the time and expense of trial. Contact the Ontario lawyers of M & Co. Law Firm for an initial consultation. You can speak with a lawyer about the mediation process and discuss whether pursuing mediation can help you resolve your legal matter.