Mediation is an alternative. It is available to resolve disputes in such diverse areas as family relationships, accidents, banking, finance and commerce, consumer contracts, insurance, leases, real estate, marine, and transportation. Mediation is recommended by Judges and Lawyers as an alternative to litigation. In many cases, through mediation, the parties reach agreement, thus saving themselves emotional and financial costs.
Mediation is a first step and a singular way of reaching a mutually acceptable settlement. If agreement cannot be achieved, the parties still can take other action such as arbitration or other legal proceedings.
Mediation is faster given that the process can begin immediately whereas disputes settled in court often take years. Mediation is private and confidential in that you do not have to reveal your personal concerns unlike proceedings in an open court of law where the public is invited to attend and witness the proceedings. Mediation costs less than traditional litigation. If both parties want to reach a settlement through mediation, the skill of the mediator can help them reach a solution in a short time. Mediation can create good will in that a mutually acceptable solution to a dispute lets both parties be winners and respect each other.
"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser - in fees, expenses and waste of time." (Abraham Lincoln)
How to Prepare
To get the maximum benefit from mediation it is important to be prepared. Preparation will vary depending on the nature and circumstances of each case and your familiarity with mediation and dispute resolution. Your lawyer is best able to counsel you on what you should do to prepare for mediation. However, the following preparation checklist may provide you with some guidance.
Consider realistically what will happen and what you will do if you do not settle the case at mediation.
What are you chances of winning the lawsuit? What are your chance of losing? What is the best you can hope for in the lawsuit? What is the worst that can happen to you in the lawsuit? In between the worst that can happen and the best you can hope for, what are you likely to win and/or what are you likely to lose? What are the chances of you having to pay legal costs to the other party if you lose? How much would you have to pay? If you win, what are your chances of recovering legal costs from the other side? How much are you likely to recover? If you are suing someone for money, can the other side pay a judgment if you are successful?
What is the financial impact on you of winning or losing? Are there consequences to losing or winning the lawsuit beyond the money to be won or lost? Will winning or losing have a moral or psychological impact? Will the judge's decision create a precedent that is important to you?
What will it realistically cost to proceed with the lawsuit if it does not settle at mediation? How much is it going to cost in legal fees? How long is it likely to take for the lawsuit to be processed and what effect is that delay likely to have? Will the lawsuit cause you any stress, embarrassment or publicity? Do you have a relationship with the opposite party or someone else that might be affected by the lawsuit proceeding?
In some cases you may find that you do not have all the information, documentation or evidence you need to determine what will realistically happen if the lawsuit does not settle (for example, you may find you need an expert's report to determine your chances of winning or losing the case). If you are in that situation, ask yourself what it is you are missing, how important it is to evaluating the case, how you can best get it, how much time it will take to get it and how much it is likely to cost.
Prior to attending the mediation session, you should try as much as possible to have all of the information, evidence and documentation needed to assess what will happen if the lawsuit does not settle.
What are your best interests and what is in the best interests of the other side?
What are you hoping to accomplish by the lawsuit and why? If you are seeking money in the lawsuit, to what use do you intend to put the money if you get it? If the other party is trying to get you to pay money:
1) Can you pay if you lose?
2) How long would it take you to get the money together if you have to pay for it?
3) If the money is not readily available, what would you have to do to get it together?
4) What will you use the money for if you are successful in defending the lawsuit?
In addition to asking yourself what you are trying to accomplish by the lawsuit, you should consider and try to understand what the other side is trying to accomplish in the lawsuit. Try putting yourself in the shoes of the other side and imagine what you would be thinking and wanting if you were on the other side. If you are being sued for money, ask yourself what is it that the other side hopes to do with the money? If you are suing for money:
1) Can the other side pay?
2) Does the other side have the money readily available or would it take time to get it together?
3) If the money is not readily available, what would the other side have to do to get it together?
4) What will the other side do with the money if you do not win?
How is the amount claimed in the lawsuit calculated? If the calculation involves amounts for different elements (for example, principal, interest and legal costs), how important are each of these elements to you? If possible, draw up a list of the elements in order of importance. How important are are of the elements to the other side? If the other side was to draw up a list of these elements in order of importance, what would it look like?
If there is something other than money that is important to you or the other side in the lawsuit; for example, reputation, publicity or making certain someone does not "get away with it"? Are there any ethnic, political, organizational or timing factors that are influencing you or the other side in continuing the lawsuit? If there are, what are these influences and how important are they to you? How important are they to the other side? Is there something not covered by the lawsuit the other side has that you want or you have that that the other side wants? Is there something that the other side can do for you or you can do for it that is not covered by the lawsuit? If there are things in the dispute that are important to you other than any money involved, make a list of them and try to put a value on them by putting them in order of importance.
If you are unable to settle the case, is there anything you and the other side can agree to that would reduce the cost of proceeding with the lawsuit? Are there facts that you and the other side can agree on in the lawsuit so that these need not be proven by evidence in court? If there are, what are they? Draw up a list.
Imagine ways of resolving the dispute.
In light of what you know of your best interests and the best interests of the other side, are there any solutions to the dispute that can reconcile these interests or some of them? Is there something that the other side can give up or give into that is less important to the other side than it is to you? If the lawsuit involves money, is it possible to find something other than money which can be used to help settle the lawsuit?
A good way to do this part of the preparation is to make and analyze a list of everything you and/or the other side could do to get rid of the lawsuit. Start by writing down the extremes of you caving in completely in the lawsuit and the other side caving in completely. Then write down all the other possibilities that you can imagine. Do not try at this point to write down only the possibilities that are favorable to you or those that might work in a settlement. Make a list of all the possibilities no matter how workable or unworkable, favorable or unfavorable. Once you have what you consider to be a complete list of anything and everything that could be done to get rid of the lawsuit, go through each of the possibilities. Map out the advantages and disadvantages of each possibility and why you think each of them might work in a settlement.
Are there any limits on your ability to settle?
If you do not settle the lawsuit at the mediation, what must the settlement agreement include? Is there a clause or provision that has to be in the settlement agreement? If there is a limit on your ability or authority to settle, what is that limit?
Source: Ottawa Pilot Mandatory Mediation Program
Lawyer's preparation guide for mediation
1. Know your case.
* Know which facts are disputed and which are undisputed.
* Know which facts are critical, which are important and which are merely background.
* Lay out the elements of your cause(s) of action and the facts you have in support. This will form the background for your opening statement.
* Know your damages or the other desired relief. Regardless of whether you are moving or defending the case, know what result you want.
2. Know your alternatives to settlement - know your risks.
* Know how long and how expensive it will be to go to trial and what outcome is possible at trial.
* Know what results are likely from a trial.
* Know your other options (such as walking away) and other tools (such as binding arbitration or binding summary trials).
3. Prepare your client (and prepare yourselves as a team).
* Explain the mediation process.
* Review the evidence to support your assertion of facts. Review the law as it appears to be, and how it will impact on the evidence.
* Determine the interests, concerns, fears and expectations the client has.
* Do a reality check. Identify strengths and weaknesses.
4. Validate the other party's case.
* At the very least, get disclosure in advance of all documents.
5. Examine practical and realistic alternatives to going to trial. Come prepared to discuss these.
6. Ensure that you bring the right person (one with real authority) to make a deal.
7. Inform the mediator in advance of any matters that are of special concern.
8. Explain your role in the mediation process.
Choosing a Mediator for Court Connected Mediation (Superior Court of Justice)
The parties to the lawsuit can agree to choose a mediator who will conduct their mediation session. If the parties cannot agree on a mediator, the court chooses and appoints one for the parties. Unless the parties otherwise agree, the mediation session must be conducted by a "court-connected mediator" who has met the requirements for admission to the roster.
A roster of court-connected mediators is available from:
* your lawyer;
* the Office of the ADR Coordinator;
* the Case Management Centre located at the Ottawa Courthouse;
* the Carleton County Law Association Library located on the second floor of the Ottawa Courthouse;
* online at the Ontario Mandatory Mediation Program website.
In choosing a mediator, one might consider the following points:
* What is the mediator's training and experience in mediation?
* What is the mediator's knowledge about the court process?
* How does the mediator approach a mediation?
* Where will the mediation session be held?
* What is the mediator's hourly fee, should the mediation time exceed the 4 hour fixed tariff (1 hour preparation time in addition to the 3 hours for the mediation session)?
A lawsuit can be a long, expensive and difficult experience for anyone. In order to address these concerns, a system of case management has been implemented for civil cases commenced in the Superior Court of Justice at Ottawa. Many parties negotiate during the course of the lawsuit. Over 90 percent of all lawsuits settle before they go to trial. Court-connected mediation is a formal opportunity in the civil court process for the parties to sit down early in the lawsuit to talk and listen to each other. With the assistance of a trained mediator, parties may be able to avoid much of the expense and delay of the traditional court process. Cases can be exempted from the mediation referral only with the court's approval.
In a non-court connected mediation, the same considerations would apply.
What to expect at mediation
Prior to the mediation, each of the parties is required to provide a Statement of Issues to the other side and to the mediator. Where a party is represented, The Statement of Issues is usually prepared by the lawyer.
In their Statements of Issues each of the parties identify the factual and legal issues about which there is agreement and those that remain in dispute. The parties also briefly describe their case and their interests. In addition, they append to the Statement of Issues a copy of any document that is of central importance to the case. (It would be an unusual case where more than three issues are identified or more than five documents are appended).
Before the mediation session begins, all the parties sign a confidentiality agreement. No one other than the mediator, the parties and their lawyers, if they have one, will attend the mediation without the consent of all the parties. The mediator usually begins the mediation session by ensuring that various procedural matters relating to the mediation have been taken care of and that the parties understand the mediation process and how the mediation process will proceed.
In a court-connected mediation.....
After the mediation session, the mediator is required to complete and file with the court a certificate which indicates the following:
* the parties settled prior to the mediation session;
* the parties settled as a result of the mediation;
* the parties did not settle;
* the parties settled some issues as a result of the mediation.
The certificate contains no other information about what happened or what was said at the mediation. If the case settles at mediation, the lawyers representing the parties are responsible for ensuring that the settlement is implemented and that the case is formally taken out of the court process. If the parties do not settle, or settle some of the issues, the case will continue in the Court as set out in the Case Management Rule.
In a non court-connected mediation, if the parties settle their dispute, they enter into a written settlement agreement, which can be enforced.