Don’t litigate, mediate!

Mediation is a method of settling disputes or lawsuits outside of court. Unlike litigation, which involves lawsuits in public courts, mediation can be done privately. Unlike court, which is formal and public, mediations are informal and completely confidential. Mediations are not “open to the public” as are Courts of Law.

Mediation is often preferable where confidential matters will be discussed, such as trade/business secrets and financial information. The parties may not want the public to hear about their business activities or their personal behaviour. It is one thing to make an allegation in a pleading, but another thing to testify about it in open court! Private mediation is one way to avoid having embarrassing or humiliating events disclosed to the public.

Almost any type of dispute — employment termination, health care and long-term disability, invasion of privacy, breach of contract, corporate or partnership dissolution, personal injury claims in tort, commercial or collection matters, insurance, product liability, contractual liability, family/matrimonial, or estates and trusts, etc. — is suitable for mediation.

Litigation differs from mediation in many ways. Litigation involves a judge (or, in small claims court, a deputy judge) who decides a case and issues an Order or Judgment. In litigation, one party “loses” and the other party “wins.” Usually, the winner gets its costs and then has the challenge of “collecting” its judgment from the other party. Unfortunately, the court system is frequently backlogged, and lengthy delays cost the parties time and money. Lengthy delays are common because matters are often adjourned. This happens frequently because the court lists are long, and matters do not get reached. So delays are inevitable and costly.

In mediation, a neutral third party — the mediator — assists the disputing parties in finding a solution that works for them. The mediator does not impose a settlement or decide a case. Instead, the mediator’s role is to help the parties to communicate and negotiate with each other in a constructive way, so that each party understands the other party’s interests, not just their positions!

The parties to a mediation select a private sector mediator and agree on a mediation date, and a location convenient and acceptable to the parties, such as the mediator’s office, or an office of one or the other party or its lawyer.

Instead of exchanging pleadings, and conducting oral examinations, and documentary discovery, each party to a mediation provides the mediator and the opposing party with a document setting out the factual and legal issues in dispute and the position and interest of that party.

At the mediation, all parties have an opportunity to “tell their side of the story,” to say what is important to them and to ask questions. The mediator can meet separately with each of the parties either before the mediation begins or during the mediation. Mediations can be short (one hour) or last for days. All parties equally share the cost of the mediation session. Each side pays the mediator directly.

Mediation saves time and money and is seen as more satisfying because the parties devise a solution that meets their needs. In situations where the parties want to maintain an on-going relationship, mediation is helpful because it promotes co-operation in problem-solving and communications!  

Elliott Goldstein, B.A., J.D., is a Thornhill, Ont.-based lawyer (elgold@rogers.com).