Kim Kieller, partner Family Law
By now most of the public is aware that there are several ways to settle any dispute – whether it be a family breakdown, a corporate shareholder dispute or an employment contract disagreement. Historically, the parties would prepare their materials and let a third party – a judge – decide their issues and dictate a solution. Several different styles of litigation have developed. In the extreme, there is the “deny, deny, deny”, litigation method. This is practiced by the lawyer/client that will simply not agree to anything. Sometimes this can actually be effective. However there is a serious cost to this type of a strategy, both financial and emotional. The second form of litigation model has become much more acceptable in the last 20 years; being a negotiation model. For example, when I started practicing law, the idea of a settlement conference was a novel approach! Now a settlement focus is a part of all litigation .
However, litigation is not the end-all and be-all for most parties. By litigating a matter, a third party who does not know you, your dispute, your personal needs, your ambitions and the background to the litigation decides all issues before him or her. It may take years to get the matter settled. it can be costly. It can be emotionally and psychologically draining. The efforts and stress from the litigation can also, in most cases, deter from productivity and positive returns as the process is a divergence of you and your firm’s efforts from moving forward to living in the present.
So, what options does one have?
Negotiation is always an option. However, when negotiation – where both parties and their counsel have their own agendas, fails, another option is mediation or mediation and arbitration. For the sake of this blog post, the do’s and don’ts of mediation are the focus. A subsequent blog will deal with the issue of arbitration.
Mediation is a process where a nonbiased independent individual facilitates the parties in order to come to an agreement as between themselves. The mediator does not offer solutions. The mediator does not make decisions. As a neutral facilitator, the mediator is trained to assist the parties in coming to a reasonable and fair agreement. The mediator in a complex case may bring in certain individuals including accountants, business valuators, psychologists, etc. The mediation is not a “quick and dirty” approach. The process can take a while. However, it is a process that can be utilized in an effective and efficient manner.
There are two types of mediation – open and closed – and depending on the circumstances the parties choose which format they wish to utilize. In a closed mediation session, everything is privileged. Nothing that is said, written or suggested in the mediation, unless it is finally determined in an independent contract, is binding on the parties. In a an open mediation session there can be a report completed in regard to all that is occurred and the information discussions are not privileged. The mediator may make recommendations. The terms of what can be released by the mediator is determined by the contract between the parties and the mediator, usually, with independent legal advice.
In short, it is important, if you choose mediation, to follow the following do’s and don’ts.
DO always obtain a well recognized, qualified and certified mediator. Anyone can hang up their shingle and indicate they are a “ mediator”. A qualified and certified mediator is known by their initials or by their certification from one of the three mediation services in Ontario ADRIO, OAFM, FMC. It is imperative that the mediator you choose have at least one designation. To obtain the designation, the mediator must go through a rigorous internship. For example for the OAFM accreditation, one has to take 2 40 hour courses, a domestic violence course and have at least 100 hours of interning experience before they can even apply to the accreditation committee to be certified . In choosing a certified or accredited mediator, you can be confident that person will follow all of the rules and principles of mediation in order to provide an effective mediation – rather than a glorified pretrial or worse.
DO be prepared for the mediation. If it is of a financial nature, bring the financial documents with you. Attempt to have a synopsis of the financial issues determined ahead of time and exchange them with the other side. If you are not sure as to what is needed, ask for a premediation meeting where the mediator can discuss the issues with you, set an agenda and assist in determining what information you will require.
DO discuss, in advance, the attendance of counsel. In complex cases, the use of counsel may assist in resolving the outstanding issues; by way of drafting minutes of settlement, providing an analysis as to whether or not the agreement you are about to reach is reasonable in the circumstances. One factor that I note with clients is that they are prepared to settle for the here and now but not take into account the consequences of a long-term agreement. Your counsel can assist you to ensure that you are not settling for the short term but with unknown long-term consequences.
DO talk. The mediator is not going to talk. This is your mediation. You set the agenda. You discuss the issues. The mediator is responsible to keep you on track and use various techniques to bring you back to the issues and assist the parties in resolving outstanding matters.
DON’T expect the mediator to settle your issues for you. The mediator is not going to do so. The mediation is your mediation. The mediator will simply assist you in coming to a resolution.
DON’T expect the mediator to give you legal advice. The mediator may educate you but will not provide advice regarding the particular circumstances.
DON’T expect that the mediation report, once received , to be a final and binding agreement. In most cases, and the mediator can assist you in understanding if yours is one of these cases, the mediator may prepare a report which will be then taken to both lawyer; whether it’s a family lawyer, civil lawyer or otherwise, to come to a final resolution and a contract or agreement completed by counsel with independent legal advice.
DON’T expect the mediation to be completed quickly and in one session. Both parties have their point of view and no matter how much you feel that your position is correct, the other side will have their position as well. While some mediations may be completed in one session, in my experience this is the exception to the rule.
Mediation is a fair reasonable and considered way to manage disputes. It is something every person in a legal dispute ought to consider in order to save time expense and the emotional drain of a lawsuit.