Mediation is often misunderstood. Parties may fear that going to mediation means that they will compromise their position, or that they will be simply bullied into “splitting the difference” in their dispute. This cannot be further from the truth, and any mediator who operated in such a way would not be in business very long.
Who is the mediator?
Mediation is a process through which a neutral person (a “mediator”) is called upon to assist parties to discuss their dispute, and to negotiate a resolution. The mediator is often, but not always, a lawyer or a former judge, who is specifically trained in mediation techniques.
In selecting a mediator, it is often useful to choose an individual who has legal experience in the subject matter of the dispute (eg. construction, personal injury, etc). This allows the mediator to quickly grasp the subject matter of the discussion, and lets them dive into the details on a different level. A thoughtfully-chosen mediator will also be attuned to creative ways in which the dispute may be resolved, and will be able to give the parties an objective assessment of the legal risks of proceeding through litigation, if desired.
Is it expensive? Time consuming?
Resolving a dispute at mediation is much quicker and much cheaper than going to trial. With Covid-19, parties are sometimes surprised to learn that their dispute may take years to resolve, with some trials booking well into the distant future. A mediation, by contrast, may be booked at the parties’ mutual convenience. Costs saved on mediation vs trial may very easily be in the tens of thousands of dollars (or more, depending on trial length and dispute complexity).
What can I get?
The goal of a mediation, is to find a mutually-acceptable resolution to a dispute. While it is true that both parties will need to enter the mediation knowing that they will not walk out with 100% of their desired outcome, going to court will not result in 100% success either. Such a result would be extremely rare, and even such a rare victory would seem less of a triumph once time and cost to achieve that 100% successful judgment are factored in.
A little-understood fact about mediation, is that whereas a trial judge will have the ability to provide limited, specific outcomes at the trial (usually money for narrow categories of “damages”, costs, etc), a mediator is limited only by their own creativity and the parties’ unique interests. To give a visual (food-based!) example, this means that while a pie can only be divided in certain ways in a court-room, the pie actually gets larger in a mediation! (This is also why parties need not fear the dreaded “split the difference” scenario.)
Here are some real-life examples of creative settlements I have been involved in:
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- Resolution involved an exchange of money, and ALSO the promise of a new, lucrative contract which was appealing to both parties- one party needed the specialized expertise of the other in order to service clients, and the party with the expertise was interested in expanding into a new market, which this contract allowed them to do.
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- Resolution involved requirement of payment of a substantial sum in a very short time frame- here, the time frame for payment in full was of importance to the recipient party. Even if the same judgment had been received at trial, it could have taken a significant period of time to enforce it, which would have been less valuable to the recipient.
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- Both parties came into the mediation entrenched over a sum of money, but resolution was achieved when a licencing agreement was entered into, giving one party access to certain technology that was of value to them. This was not an outcome any court could have granted, yet it worked well for the parties and they avoided costly and time-consuming litigation!
It is well-documented that satisfaction of outcomes at mediation is typically much higher than those achieved at trial- even for the trial-successful party.
A useful tool
Resolution at mediation is voluntary– if no agreement is reached, the proceedings are non-binding. Also, what happens at mediation, stays at mediation- the parties will be asked to sign a confidentiality agreement at the outset of the mediation, keeping discussions and any agreements confidential. If the matter does not settle, the mediation is “without prejudice”, meaning that nothing discussed in the mediation may be used against the other in a court proceeding.
At Synthesis Legal, we have the training and experience to assist you to resolve your dispute in mediation, either as legal counsel or as your neutral mediator. If you are unsure whether we are the right fit for your particular dispute, we encourage you to give us a call for a no-obligation free consultation. We are well connected with mediators in many different areas of practice, and will be pleased to refer you to an alternate skilled mediator if necessary. We welcome the opportunity to be your first call.