Tips For A Successful Mediation

Mediation is an alternative dispute resolution method where the parties try to settle their dispute with the assistance of a mediator. The mediator is a neutral third party who facilitates settlement through discussion. This article will discuss tips for successful mediation and factors to consider when deciding between mediation vs arbitration.

Over the years, mediation has evolved into a formidable mode of dispute resolution. It is a cooperative, interest-based approach to conflict resolution.

Mediation can be compulsory under a statute or in the terms of a contract. The Ontario Rules of Civil Procedure (Rules) provide for mandatory mediation for certain actions in Toronto, Ottawa, and Windsor. Examples of statutes that provide for mediation include the Commercial Mediation Act and Insurance Act. Further, the parties may choose to engage in private mediation at any time.

Mediation enables the parties to resolve their issues amicably by exploring different ways to compromise, which might not have been available in litigation. It can be successful if the parties come with an open mind and focus on conflict resolution.

Five Tips for a Successful Mediation

Mediation can effectively resolve most non-criminal matters, such as custody disputes, employment matters, contractual disputes, divorce, and commercial matters. Some tips for successful mediation are:

Assess your Best Alternative to a Negotiated Agreement (BATNA);
Be clear and flexible in your goals;
Have an open discussion regarding the issues;
Understand the mediator’s role; and
Consider seeking legal representation.

Assess Your Best Alternative to a Negotiated Agreement (BATNA)

Parties can benefit from undertaking a BATNA analysis before mediation. BATNA is the standard against which parties can measure their proposed settlement agreement. For instance, if parties engage in mandatory mediation, the trial is their BATNA.

The steps involved in the BATNA process are as follows:

List all available courses of action if the mediation fails;
Determine the value of each alternative and list the most attractive ones; and
Determine the lowest value deal the party will be willing to accept.

Parties can evaluate their negotiation position and settlement proposals in light of how the dispute will proceed without an agreement. The BATNA analysis enables a party to make an informed decision about possible options for resolution, define their goals and manage their expectations.

Be Clear and Flexible in your Goals

Mediation can be successful only when the interested parties cooperate and work towards the settlement or fair resolution of the dispute. Before coming into mediation, parties should consider whether they can achieve their goals under the mediation process.

If a party is looking for revenge or wants to impose its will on the opposing side, mediation might not be ideal for them. Approaching the mediation process like litigation, where one party might seek to make the other side pay, can endanger the whole process.

In mediation, both sides express their specific concerns and listen to each other’s points of view. It can be fruitful if the parties concentrate on finding resolution options that address their concerns.

While a party may come to mediation with a bottom line, they should be willing and have the authority to change it in appropriate circumstances. Further, they should be able to accept any offer of resolution made by the opposite party. For this reason, the decision-makers must participate in the mediation process.

Have an Open Discussion Regarding the Issues

Mediation is an inclusive process where the parties, their lawyers and mediators participate in resolving issues through discussion. Confidentiality is the hallmark of the process.

The mediation process allows each party to state its position, discuss their interests, be heard by the mediator and vent. The parties can openly discuss their issues without worrying about the adverse consequences of any inadvertent admissions.

Further, both sides are compelled to listen to the other side’s grievances. Sometimes, an honest discussion about grievances helps the parties to come to a mutually acceptable solution.

By engaging, the parties can avoid the publicity often associated with litigation. In closed mediation, the discussion between the parties and the mediator remains confidential, except for the settlement agreement’s terms.

Understand the Mediator’s Role

Whether mediations are mandatory or voluntary, they constitute a negotiation process facilitated by a mediator. Therefore, parties must understand the mediator’s role.

Although some mediators can provide an expert evaluation of the case or try to predict its outcome if requested by a party, the mediator serves a different purpose than an arbitrator or a judge.

In the mediation process, the mediator questions and critiques the position of both parties. To an inexperienced person, it may seem like the mediator favours the opposing side. However, the mediator is an unbiased facilitator who seeks to achieve consensus by managing the parties’ expectations.

The mediator can make recommendations to the parties but cannot force the parties to accept their suggestions. A party is free to reject any offer that does not correspond with their goals. They should not feel pressured into accepting a settlement.

Consider Seeking Legal Representation

Mediation is voluntary, as the parties can decide whether to settle. Parties can negotiate the terms of the settlement based on their unique facts. The lack of legalities in negotiations tempts some parties to participate in mediation without legal representation. However, a lawyer can help during mediation in the following ways:

Explain the process and prepare their client;
Give legal counsel on the matter;
Undertake the BATNA analysis for their client;
Advise on the settlement offers;
Prepare and review the settlement agreement before it becomes binding; and
Assist in enforcing the settlement agreement.

While mediation is a cost-efficient and quicker alternative dispute resolution method, there are others. Arbitration is another popular conflict resolution mechanism which allows the parties to resolve their dispute outside the traditional court system.

Mediation vs Arbitration

Similar to mediation, the “arbitrator”, a neutral third party, facilitates arbitration. However, arbitration is a more formal process governed by federal and provincial statutes such as Ontario’s Arbitration Act. Unlike a mediator, an arbitrator can hear the evidence and decide the matter.

Further, arbitration is similar to a court process, as the parties appear before an unbiased adjudicator to present their case and submit their evidence. However, the arbitration process is usually much less formal than ordinary court proceedings.

In contrast, mediation is negotiation with the mediator’s assistance. In mediation, a matter is only resolved if all the parties sign a settlement agreement.

Mediators do not issue orders, find faults, or make determinations. Their role is to assist the parties in settling their dispute by obtaining information, facilitating discussion, and proposing options for resolution. On the other hand, the arbitrator has the power to render a legally-binding decision enforceable through court.

If the parties intend to maintain a working relationship, confidentiality, and limit costs and business disruption, mediation could be an effective way to resolve conflict. In contrast, if the parties want to settle the matter outside the courts but still need someone to make the final decision, they may choose arbitration.

Conclusion

Mediation allows the parties to explore their mutually acceptable solutions to legal issues confidentially. In mediation, a neutral third person called the mediator helps the parties reach a negotiated settlement. It allows them to get a reality check, be heard and help clarify the issues. Mediation can be successful if the parties resolve their issues instead of looking for a “win-lose” outcome.

However, mediation is not the only method to resolve disputes out of court. Arbitration is another popular method where the arbitrator decides on the conflict between the parties. These methods of dispute resolution are confidential and are quicker, less expensive alternatives to traditional court processes.

Contact Us

If you have an upcoming mediation or are wondering whether mediation is right for you in your matter, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected], and we would be happy to assist.

If you are a small or medium-sized company looking for full-service support, check out our Chief Legal Officer (CLO) program page for our strategic solutions.