Mediation
An introduction
To Parties
Mediation is an effective way of resolving disputes without the need to go to court. It is another of the methods of alternative dispute resolution (ADR) available to parties. Mediation is essentially a negotiation facilitated by a neutral third party. It involves an independent third party - a mediator - who helps both sides come to an agreement. The Mediator uses specialised communication skills and negotiation techniques to facilitate disputing parties bridge their differences and find their own mutually acceptable solution to the dispute.
Mediation can be done at any stage of the dispute. The dispute may either be pending in a court or potentially a dispute which may be filed in court.
Why Mediate?
Mediation has a number of advantages over litigation and arbitration processes:
To Parties
There are numerous reasons why a party to a dispute might choose mediation over traditional litigation or other forms of alternative dispute resolution. Some of them are affordability, timely resolution, private sessions, confidentiality, participation in the resolution of the dispute, and in many cases preservation of the interrelationship between the parties.
The cost of mediation is less than the average cost in time and money for the litigation of a dispute. The mediator's hourly rate is generally lower than the hourly rate for a lawyer. Parties can often schedule mediation within weeks of a decision to mediate or a court order to mediate.
Mediators offer their services in the evenings, weekends and regular weekdays. There are
no spectators to the mediation and whatever is said in the mediation can not be repeated or reported by the mediator to another party. The Settlement Agreement is the only record of the proceedings. The Agreement to Mediate which is signed by the parties prior to the conference will often remind the parties of the confidentiality of the session and that the mediator is not available as a voluntary witness in a trial of the matter.
The ability to fashion user friendly resolutions to a dispute is an attractive component of mediation. The parties are empowered to solve their problem in workable terms to achieve a "win-win" solution. This often promotes healing where one party feels tremendously aggrieved or allows the parties to continue their business, employment or personal relationship. In many cases the parties strengthen their working relationship for greater workplace efficiency.
To Attorneys Parties
The ability to move cases to resolution is an ever present problem for attorneys as they seek to improve the financial status of their practice. This is complicated by court dockets that are backlogged and much time is spent waiting for a judge or jury to be assigned even on a day when a case is scheduled. Continuances are often requested by opposing counsel in routine matters which if resolved would limit the amount of manpower allocated to a particular case.
Mediation offers an opportunity to improve case management/resolution and client satisfaction. An employment discrimination complaint can take years to litigate. Using various forms of alternative dispute resolution available in the area of employment law, an attorney can resolve such complaints in months after the investigation is complete. A personal injury case with a simple soft tissue injury can be mediated in a matter of weeks
after submission of the demand letter to the insurance company in areas where insurance companies have agreed to mediate certain classes of cases.
Swift, efficient movement of workers' compensation cases, contested divorces with complicated property and custody issues and business contract disputes can improve the financial status of your firm. The corollary benefits are customer/client satisfaction, increased client referrals and more time for complex cases.
Mediation offers the opportunity to improve your bottom line by adding a service to your practice. You can become a court appointed mediator for court ordered mediations, advertise your services to members of the bar who are looking for mediators with special expertise or collaborate with a group of lawyers to provide a mediation service for a particular industry or area of law.
Where Mediate?
To Parties
The best place for mediation is one that has an environment that is safe, neutral, comfortable and peaceful. The environment of the place of mediation plays an important role in arriving to an agreement. Comfort can be the deciding factor. Mediation can be held anywhere as long as the parties and the mediators are comfortable with the place. The place of mediation can be chosen by the parties or provided by the mediation centre. VIA allows the parties to choose the place of mediation so that their comfort is not compromised. Any place chosen by the parties will be accepted by VIA and mediation shall be held at such place. The charges for the place of mediation shall, however, apply.
When Mediate?
To Parties
Mediation is usually a voluntary process, although sometimes statutes, rules, or court orders may require participation in mediation. Cases suitable for mediation are disputes in commercial transactions, personal injury, construction, workers compensation, labour or community relations, divorce, domestic relations, employment or any other matters which do not involve complex procedural or evidentiary issues. However, the scope of these processes is not limited to these types of disputes.
As soon as parties in dispute are in a position to talk about a resolution of their dispute or to attempt to negotiate, they are ready to mediate. Mediation can be sought at any stage of te dispute. There are very few disputes that are not amenable to mediation. Mediation can take place even before lawyers are involved, or before proceedings are issued.
