Lawyers are, inherently, problem solvers and seek to successfully resolve disputes on behalf of clients. In recent years, the approach to problem-solving has become less adversarial and more cooperative and has often moved outside of the courtroom. Instead of traditional litigation, mediation is often a route parties take because it allows them to be more in control of the setting, the discussion, and ultimately the resolution. Here are some mediation tips that are useful for all potential litigants.
To Mediate or Not to Mediate?
This is an important question. Not all matters are suited for mediation. If the dispute is hotly contested and adversarial, mediation is likely not the right choice. If the parties are open to discussion and the issues are ones that can be solved through discussion, then mediation could work.
Personal injury (including claims arising from motor vehicle accidents), employment issues, some contractor disputes, landlord-tenant issues, and some commercial disputes are resolved through mediation.
Ultimately, whether mediation is appropriate in your circumstances will come down to the facts of your case and the opposing party.
Importantly, you cannot force a party to mediation as it is a form of dispute resolution that requires cooperation from both sides. It is also critical to remember that mediation is led by an impartial third party, but the agreement is not legally binding unless both parties agree to it and sign off on it. The mediator is not making a binding decision for you like a judge or arbitrator would, they are simply assisting the parties towards a mutually beneficial resolution.
Do I Need a Lawyer for Mediation?
It depends. An experienced lawyer can be extremely helpful in ensuring that your voice is heard and that all issues are addressed. Sometimes these disputes can be overwhelming, so it might be useful to have someone there who is looking out for your interests. But, if you want to reduce costs and your dispute is simple with few issues, then you may not need a lawyer.
There are situations where you should most definitely consult with and bring a lawyer to the mediation:
- If one party believes the other is not going to be honest in disclosing information;
- If one of the parties does not feel comfortable communicating for themselves the entire time;
- If there are complex issues or many different issues; or
- When there is the possibility that one party may intimidate the other.
It is always wise to seek independent legal advice before going through with mediation. Some lawyers offer what is called “limited scope retainers”, which essentially means that the lawyer will assist you with some or part of your dispute, but not the whole thing. A lawyer can help you prepare, although not completely (depending on the scope of the retainer), and you can ask them for tips on how to deal with mediation and how to ensure your voice is heard.
Other Important Information
Mediation is a completely confidential process. Unlike court records, that are public (unless the court orders a publication ban, which is done only in certain circumstances such as when there are minors involved), mediation records are completely confidential. No one but the parties involved will know what occurred and what the final resolution was.
Before you begin mediation, you will meet with the mediator and they will go through the ground rules and the process. If everyone is agreeable, then a mediation agreement is signed. Sometimes once the process begins, parties realize that it is not the right arena for their dispute or for them. This is totally normal and completely acceptable. Parties may exit mediation at any time.
While mediation reduces the costs of your dispute, there are still some costs associated with it. This includes fees for the mediator. Every mediator has different fees depending on their experience and how long they have been doing mediations. The complexity and length of the mediation also factor into the costs.
There is always the possibility that the dispute is not resolved through mediation. In the event that an agreement is not reached, litigation may be the next step. Agreements ultimately come down to the parties, and it is not a reflection of the quality of the mediator or the lawyers.
Can I Pick Any Mediator?
When parties decide to proceed with mediation, they both have to agree on a mediator. It is often best to get a mediator that is experienced in the area of law that your dispute falls into.
There are many mediators to choose from and it is important to meet with a mediator prior to hiring them. You want to make sure that the mediator you pick is experienced in the area of law your dispute falls in, but they are also a good match for you and the other party. Every mediator has their own techniques, their own process of handling and guiding mediation, so it is important to know that their process works for you and the other party. The number of disputes the mediator has helped resolve should also be taken into consideration when looking for one.
When you do meet with a mediator, avoid asking legal advice and giving your opinion on the dispute. You can tell the mediator what you hope to gain out of mediation, what the dispute is, who the parties are, what is at stake, and so on. But a mediator is supposed to be an impartial third party, so avoid seeking their opinion on the legal issues or asking their advice.
At HMC Lawyers, we have a very experienced lawyer who is both a skilled arbitrator and mediator and a mediator. Michael Hokanson and Sean Jeffers help parties resolve their matters without going to court. If you are considering mediation, give us a call at 1-800-480-3534 or contact us online to set up an appointment with one of our skilled mediators. If necessary, we are able to travel throughout Alberta and Western Canada to help parties resolve their disputes.