“How can I resolve a dispute”? Mediation!
When faced with a legal challenge, one of the first questions that will be on your mind, is, “how can I resolve this dispute”? Not surprisingly, this goal is almost always focused on the most cost effective and timely way to achieve a desirable result. To achieve both of these outcomes, mediation may be the right choice.
In a previous post, we described what mediation is and some of the key advantages of mediation. Read the article here
In this article, we will explain how mediation ranks in terms of empowerment and control over the process and outcome, compared to litigation.
When there is conflict about a legal issue, sometimes parties assume that litigation is the only option – “let the Judge decide”! When someone thinks that the only possible outcome is that the Judge will see that the other side is wrong and decide in their favour, this may seem like a good option. However, more commonly, the truth lies somewhere between the alternatives presented. There is always room for interpretation – the grey area.
This means that by sending the dispute to Court, you are putting the decision entirely in someone else’s hands. Despite your efforts at persuasion, ultimately, the Judge is a human being who will come to an independent conclusion about what happened and what the outcome should be.
Mediation is powerful, because by using it as a tool to assist in negotiation, parties are often able to move beyond an impasse, but still retain ultimate control over the process and the outcome.
Process
Why is retaining control over the process important?
Location
When disputes go to Court, there is very little control over things like scheduling, or location. For instance, a case must be set down in the proper physical location that is tied to the issues in the dispute (called “jurisdiction”). For instance, if a contract was made in and carried out in Vancouver, but one of the parties now lives in Cranbrook, the action may need to be filed in Vancouver. That could end up being a large inconvenience for the party in Cranbrook.
Timing
When an action is filed with the Court, parties lose a lot of control over timing. To start with, there are certain timing requirements set out in the Rules of Court, which prescribe how the action must proceed. There are strict deadlines that must be followed, and consequences for missing them. This can cause stress and anxiety for those involved.
Next, there is scheduling of Court-related steps. Sometimes parties have a bit of control over selecting dates for certain steps – for example, if you need to ask the Court for assistance or a temporary remedy through an Application, you can select the date on which to appear. However, even this choice becomes restrictive, if you need to ensure that the other party is also available to attend. Then there are considerations abut whether the Court will be able to hear your case on the day you select. The Court is regularly over-booked in some jurisdictions and cases are being bumped to another day. On the day you choose, you may be waiting for hours to be heard, and you may not have any idea when your turn will come.
Finally, even though you will likely choose a trial date (after consulting with the other parties involved and coordinating your schedules), trial schedules themselves are imperfect, and you, or other witnesses may not know exactly when you need to appear until very close to the appearance time – this means booking off large chunks of time, simply to be ready. While you may have selected the trial date, many things will thereafter be out of your control. You can imagine how this loss of control over the process adds to an already stressful situation.
Mediation offers some relief. In addition to selecting the mediator itself, parties can select the timing and location of the mediation. Many mediations are even happening over distances by Zoom, with great success. The mediator is there for you and only you and there will be no waiting on the day of the mediation to get the mediator’s attention.
Special Accommodations
Mediators are available to speak with parties before the mediation, which allows for even greater control over the process. A pre-mediation meeting will put the parties more at ease about what to expect, and also allows for any special requests that will make them more comfortable.
Accommodations needed to feel more at ease in the mediation can almost always be arranged. Have an injury or illness that requires you to frequently stand up and walk around, or sit in an ergonomic chair? Sure. Do you need a support person to sit with you while you discuss the issues? Ok. Is it counterproductive to meet with the other party face to face and you prefer for discussion to flow through the mediator? That can be arranged. Many of the accommodations available to mediators are simply not possible in the Court room setting.
Outcome
In the mediation itself, parties retain control over the outcome. This is unlike in Court, where the Judge will ultimately decide upon which version of the “truth” they believe and how much it is worth (which can be in favor of one side or the other, or something altogether different than what either of them expected).
The negotiations at mediation will keep moving the discussions forward until an acceptable resolution is reached, or until the parties or the mediator decide to end it. In the vast majority of cases the parties are able to resolve things (see our previous article for some of the reasons why!). If there is truly no way to resolve the issues at the mediation, the parties are not stuck with an unsavory decision – they remain free to end the process (which remains confidential) and move forward with litigation steps.
Consider Mediation
There are many things to consider when deciding how to resolve a dispute. Mediation is a great choice in many cases, as it allows parties retain control over the process and outcome. We would be happy to discuss mediation, and other dispute resolution options with you further in our free 30 minute consultation.