Mediation is a process that is available to settle legal disputes. In British Columbia, the most recent version of the Supreme Court Rules allows us to serve an opposing party with a ‘Notice to Mediate’ which compels the other party to come to the table to mediate.
Some people describe it as an alternative form of dispute resolution.
It is a way of resolving disputes between 2 or more parties. I will talk about here in the context of disputes in family law. A neutral third person, the mediator, trained in dispute resolution and interest based negotiation, assists the parties to negotiate their own settlement.
In some cases, mediators may express a view on what might be a fair or reasonable settlement, generally where all the parties agree that the mediator may do so (evaluative mediation).
Although this process has often been described as an alternative form of dispute resolution (as opposed to court), it would be fair to say that mediation is no longer an alternative form of dispute resolution. It is common and it is a mainstream way of dealing with disputes rather than turning to the courts and judges to resolve your dispute.
People who have a dispute turn to this process more and more often. Rather than take years or months to come to a resolution for a matter, parties (particularly people in family law matters and personal injury law matters) are often able to come together for one day or several days (a miniscule amount compared to court) and have their dispute resolved.
At Hemminger Law Group, we almost always recommend that your lawyer is present because that way when the matter is settled, it is settled. The down side to not having everyone’s lawyer there is that sometimes people reach an agreement subject to their lawyer’s approval. Then the lawyer reviews the agreement and recommends against it.
A lawyer may sometimes recommend against an agreement because it seems unfair on the surface. At the same time, the lawyer may not be aware of the context of the agreement and why, in this particular case, the agreement makes sense. Often agreements are reached and certain things are left on the table in order to make the deal happen rather than continue the fight.
We have seen this happen a lot. An example is that someone may be entitled to $1,500 per month spousal support, but they instead agree to take less because they end up with the entire value of the family home rather than half of it. Instead of taking the entire amount of support they are entitled to, they take less support and a greater interest in the family home.
The person may do this because it makes more sense to them financially (this happens in Victoria due to our expensive housing market). In any event, the context of what happens "at the table" will not necessarily be known to the lawyer who is giving final legal advice on an agreement. So, it tends to save time and money in the long run to have the lawyers present in the first place.
Why mediate? This process has a structure,
timetable and dynamics that “ordinary” negotiation lacks. Parties are able to
resolve their disputes in much more creative ways than a judge can. Solutions
can be ones where there is no “win” and “lose” position but more of an
opportunity to allow all parties to have their needs and interests met. The
process is also private and confidential.
The most important point is that although the process itself is often voluntary, when an agreement is reached, drafted and signed, it is still legal and totally binding. In British Columbia, the agreement can be registered with the court and have the same power as a court order. So, it is less painful, less time-consuming and ends up being way less costly than being heavily engaged in the often long and drawn out court process.
Some mediators and lawyers believe that mediating the dispute will allow parties to reach a new understanding with one another. They think that this new understanding may result in the parties having new-found respect and compassion for each other.
We think that world view, while nice in theory, is a bit optimistic.
We do not know if we hold up the same amount of hope for the process. That is, we are not at all convinced that one day in this type of negotiation (or a few days) will sort out the massive amounts of misunderstanding, resentment and anger that parties in conflict experience. Often the resentment, anger and frustration parties have towards one another builds up over a period of many years – it is asking too much of the process to get all this fixed in the course of a day or two.
If parties were able to fix and resolve such challenges within their relationship, they would have likely resolved their differences rather than go through the whole painful, expensive and disruptive process of separation. At the same time, we still whole-heartedly believe that this process can work wonders to allow people to be able to move on with their lives on a quicker, less expensive and less tortuous basis.
So, try it.
We have seen even some of the most difficult and seemingly impossible cases settle. Often we settle with the same result or better for our clients than they would have gotten if they had gone to trial.
Our clients have not only been able to save countless thousands of dollars by engaging in this process, they have been able to significantly reduce the tremendous stress (and some people would say agony) of ongoing litigation.
They are able to close a chapter in their lives and move forward. They are able to have the answer to many “what if” questions that they have had. They are able to do it for less cost to them emotionally and financially.
So, like we said, try it.
By Val Hemminger, Lawyer
Return from Mediation