Mediation is a voluntary, non-binding process using a neutral third party (the mediator) to guide the parties toward a resolution of their dispute. A mediator cannot force a settlement on the parties. He or she cannot impose a decision on them. Instead, the mediator helps the parties decide for themselves whether to settle and on what terms. The mediator simply acts as a catalyst for the process. He or she helps the parties reach agreement by identifying issues, exploring possible grounds for agreement as well as the consequences of not settling, and encouraging each party to accommodate the interests of the other. It is a cooperative, interest-based approach to conflict resolution. It works.
Mediation has several advantages, particularly when used early in the life of a lawsuit:
• Mediation is voluntary; nothing happens without the consent of the parties. The parties retain a high degree of control. Each party retains the right to withdraw at any time.
• Mediation does not involve a decision imposed by a judge or an arbitrator. The parties to a dispute, guided by the mediator, craft their own settlement.
• Mediation is private and confidential. All communications in mediation are privileged and cannot be used as evidence. The parties control disclosure to the mediator and whether and to what extent matters disclosed to the mediator may be disclosed to other participants in the process.
• Mediation allows for creative solutions to the dispute. Courts are limited in what they can do or order. Mediation expands the options, allowing the parties to fashion results that are often unavailable through litigation or arbitration.
• Mediation allows the parties to reach a settlement without the high cost (in both money, time and emotional stress) associated with a trial. It allows the parties to confront the issues that divide them, and develop a solution that they can accept, rather than have a result imposed on them by the court.
How does Mediation Work?
Mediation is simple. The parties or their lawyers agree on a mediator. The parties then provide written summaries (“briefs”) of their positions, and any supporting documentation, to the mediator. These briefs help the mediator understand the issues and facts that underlie the dispute.
The actual mediation then takes place, usually in someone’s board or meeting room. Generally the mediator meets with the parties together at the beginning. He or she canvasses the parties to make sure that all of the issues and facts are on the table.
The mediator may then meet separately with each party (and his or her representative) in different rooms to discuss their side of the dispute in private. This is known as “caucusing.” The mediator often engages in a form of “shuttle diplomacy,” taking offers back and forth between the parties. During that time the mediator will discuss with each party the strengths and weaknesses of the offers and counteroffers, the positions and counter positions, and the negotiation process in general.
Mediations conducted by Gus Richardson are, unless otherwise agreed, conducted under the terms set out in the Sample Mediation Agreement.
Does Mediation Work?
In the vast majority of cases the mediation process results in a settlement, usually after only three or four hours. Overall, the experience in Canada and the United States has been that roughly 90-95% of mediated cases settle on the first day. An additional percentage settle within a month of the initial mediation session, often because the mediation has helped the parties focus on the issues and facts in dispute.
The result is a low cost, high benefit investment for all involved. Mediation works.
