pacificpolicies on Why Choose Mediation?
Suppose that in each case, the parties and their lawyers have exhausted their attempts to negotiate a resolution on their own. They’re ready for outside help in ending their dispute, yet they don’t know where to turn.
When it comes to dispute resolution, we now have many choices. Understandably, disputants are often confused about which process to use. This article offers some guidance, adapted from
Frank E. A. Sander and Lukasz Rozdeiczer’s chapter on the topic in The Handbook of Dispute Resolution (Jossey-Bass, 2005).
Types of dispute resolution
Here’s a review of the three basic types of dispute resolution:
The goal of mediation is for a neutral third party to help disputants come to consensus on their own.
- Rather than imposing a solution, a professional mediator works with the conflicting sides to explore the interests underlying their positions.
Mediation can be effective at allowing parties to vent their feelings and fully explore their grievances.
Working with parties together and sometimes separately, mediators try to help them hammer out a resolution that is sustainable, voluntary, and nonbinding.
In arbitration, a neutral third party serves as a judge who is responsible for resolving the dispute.
• The arbitrator listens as each side argues its case and presents relevant evidence, then renders a binding decision.
The disputants can negotiate virtually any aspect of the arbitration process, including whether lawyers will be present and which standards of evidence will be used.
Arbitrators hand down decisions that are usually confidential and that cannot be appealed.
Like mediation, arbitration tends to be much less expensive than litigation.
The most familiar type of dispute resolution, civil litigation typically involves a defendant facing off against a plaintiff before either a judge or a judge and jury.
- The judge or the jury is responsible for weighing the evidence and making a ruling. Information conveyed in hearings and trials usually enters the public record.
Lawyers typically dominate litigation, which often ends in a settlement agreement during the pretrial period of discovery and preparation.
Cost – Time and money can be saved and emotional stress can be reduced through early resolution of the dispute.
Speed – Mediation can be arranged in a relatively short period of time and has the effect of bringing settlement negotiations to a head quite quickly.
Privacy – Mediation takes place in private and the details of the dispute and its resolution need not be publicly disclosed.
Control – Each of the parties maintains control of the dispute and its resolution because, unlike the trial process, the parties design the settlement and agree to live by it only if it is acceptable to them.
Informal atmosphere – The informal setting and atmosphere of mediation is conducive to productive communication between the parties. Many of the tensions and stresses of the adversarial process are avoided.
Separating the people from the problem – Very often in disputes, personal feelings or emotions become confused with substantive legal issues and play a powerful role in fuelling litigation. The mediator helps to separate the personal dimension from the issues in dispute, reducing tension and making settlement more likely.
Preserving relationships – Many parties to a dispute must continue to deal with one another, either in business or otherwise, after the dispute is resolved. Mediation, because it tries to avoid polarizing the parties, can help to preserve a working relationship.
Want to know more about the cost-effectiveness of mediation?
Take a look at Mediate BC’s study A Case for Mediation: The Cost Effectiveness of Civil, Family, and Workplace Mediation.
- Mediation is a very flexible process and the mediator will work with the parties to design a process that works best for the type of issues and the needs of the parties.
- In general, mediation usually involves in person meetings facilitated by the mediator.
- The mediator will sometimes meet with the parties and their representatives separately, particularly as part of the preparation process.
- The mediator may suggest the use of technology such as telephone, e-mail or web-conferencing, to support the mediation process.
- Once the parties reach an agreement, the mediator will usually assist the parties to document their proposals for agreement.
- The process for family mediation is described in more detail here.
- Mediation is a practical, affordable, flexible and confidential process to address disputes of all kinds.
- The parties, not the mediator, make the decisions about the terms of their agreement.
- Mediation is a legally binding alternative to going to court.
- For simplicity, we refer to three broad kinds of mediation:
- Civil mediation – which covers virtually every kind of dispute except “family” and “child protection”
- Family mediation – which covers conflicts within a family including separation, divorce, parenting arrangements, property and asset division, as well as planning tools including estate planning, cohabitation or marriage agreements etc.
- Child Protection mediation is a form of family mediation which involves planning for the safety and wellbeing of a child where they are disputes between the parents/guardians of the child and provincial child welfare workers.
Everyone experiences conflict. Unresolved conflict is costly, stressful, time-consuming and can cause many other problems.
What is Mediation?
Mediation is a negotiation method in which an impartial third party, called a mediator, helps the parties to resolve their issues. Mediators facilitate communication between parties. They encourage the exchange of information and urge the parties to look at the problem from different points of view and to explore ideas for dispute resolution. The parties, not the mediator, ultimately make the decisions about the terms of their agreement.
■■ Mediation saves money ■■ Mediation is quicker compared to a court action ■■ Mediation works
• It can be used for many types of conflicts
• It is practical, safe and private
• It can help to maintain relationships and provide opportunities for personal growth
• It can offer unique solutions not available through court
• It provides settlement agreements that can be enforced
• Settlement rates are high
• People are very satisfied with the mediation process
This is where you can find information about mediation, negotiation and arbitration – the work I love doing – and some background information about the field of alternative dispute resolution and research into best practices .
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