Legal Blog
A Guide To Mediation
Wednesday, July 09, 2008
A Guide To Mediation: What You Should Know
Many of our cases go through mediation. Mediation is normally a day-long process, where the parties and their lawyers get together with a neutral third party chosen by both sides (the mediator), and try to settle the dispute before it gets to trial. Here are some things you should know when walking into a mediation:
Mediation is one of the most common methods of settling claims in Ontario. Under Ontario's Rules of Civil Procedure, mediation in tort cases, where one person sues another for relief, is mandatory. In other words, you have to try to work it out without a trial, even if it doesn't look like you or the other side will budge an inch. Nothing that is said at a mediation can be used in court, so mediation also gives parties an opportunity to speak their peace, and perhaps be more candid than they will be at trial. An insurer who will deny that they should pay anything at trial will often admit during mediation that the other side deserves compensation.
The Procedure:
Typically, mediations are conducted at a neutral setting, somewhere designed to be comforting and comfortable. The mediator will introduce himself, and every party will have a chance to make an opening statement discussing their own position, interests and goals for the mediation. The two (or more) parties then break into groups, typically in different rooms, with the mediator going between groups, acting as a facilitator to encourage agreement, pointing out the strengths and weaknesses of both sides, and generally trying to ensure that a fair agreement is reached. If the parties reach an agreement over the next hours, the mediation (and the claim) is complete; if not, the parties will proceed to trial.
There are several key benefits to mediation over a trial in court:
1) The parties get to decide the settlement.
This may seem basic, but at the end of a trial, it is the judge who decides who gives what to whom. Sometimes, the judge can hand down a solution which is what neither party wanted; neither party is satisfied. Or, if a jury is deciding liability, one is left in the hands of 6 strangers, with no legal background, who may decide based on whether they like the suit of one of the lawyers, or any other random thing. In Ontario, jurors are not required to give reasons as to why they decide one way or the other. Mediation ensures that the result is agreeable to both parties and is not left in the hands of a disinterested person.
2) There are no hard and fast rules.
In court, everything is structured. Lawyers and judges wear robes, and most parties may only speak while on the witness stand, or when addressed by the judge. Everything is done according to a set of rules that most people don't even know. In contrast, a mediation is relatively informal; every party gets a say, frank expressions are encouraged, and there is less or the formality and ceremony that can obscure the truth at trial. Further, admissibility is not an issue in mediation, so even if a really good point cannot be made in court due to rules of evidence, one can use it in mediation to attempt to persuade the other side to do the right thing.
3) Immediacy
A trial can last up to 14 days, is a gruelling ordeal which often forces people to take time off work, and causes a great deal of stress. Even after the trial is settled, the other side can appeal, resulting in further uncertainty and delay in putting the incident behind you. With mediation, a settlement can be agreed upon that very day. The action is over and the injured party receives his or her compensation almost immediately. The time disparity between the two options, mediation and trial, makes most people prefer to try to settle through mediation, rather than fight a war of attrition at trial.
Conclusion
Mediation is often an effective tool to settling a legal dispute. While both parties do not get all of what they want, they are liable to get most of what they want, and may develop an understanding of the other sides' position which will help them in similar situations.