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July 15, 2011

Mediation, Mediation: What are the Questions?

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The most common question that we hear in our practice during consultations with new clients is: why should we go with a mediator to help resolve our disputes rather than a lawyer? Our answer is simple, and surprises many of our clients – engaging services of a mediator may be seen as either an alternative or a complement to seeking services of a lawyer.

Mediator: An Alternative to Retaining a Lawyer

Engaging services of a mediator is a valid alternative for clients pursuing dispute resolution. Mediators are intensively trained, and possess specialized facilitation and negotiation skills that are honed for the purposes of consensus building and agreement management. A mediator is a neutral party who seeks to understand the interests of all disputing parties and who assists discussion between and among disputing parties in accordance with his or her central objective – to resolve a dispute to the satisfaction of all disputing parties. A mediator does not represent any of the disputing parties nor does he or she privilege one of the parties’ positions within the dispute. A mediator is impartial and aims to find an optimal resolution to a conflict in consideration of all parties’ interests.

Mediator: A Complement to Retaining a Lawyer

Some clients want to pursue mediation with a trained mediator, but prefer to do so with a legal representative at their side. Whether lawyers are or are not in the picture, a mediator will play precisely the same role – he or she is still an impartial party with the central objective of finding an optimal resolution to a dispute in consideration of all parties and their interests. Again, the mediator does not represent either client as the lawyers of disputing parties represent their own clients in the mediation session.

To Lawyer Up or Not, that is a Question

Since mediators and lawyers play radically different roles in a mediation session, whether a client wants to go with a mediator alone or a mediator and a lawyer is a matter of clients’ personal preference. Many clients prefer to work with a trained mediator alone because he or she is impartial, proficient in the art of facilitation and negotiation for consensus building and agreement management, and specially trained in skills of mediation and conciliatory dispute resolution. Because mediators are neutral parties within a dispute, disputing parties share the cost of mediation, making this form of dispute resolution less costly and, therefore, more appealing for many clients.

Despite the presence and services of a trained mediator, some clients prefer to hire a lawyer to represent them within the mediation, mainly to help them articulate their interests. Mediators are familiar with and skilled at working with disputing parties and their legal counsel, but regardless of whether or not lawyers participate in the mediation, a mediator remains impartial. In this scenario, parties in a dispute will share costs of mediation while being individually responsible for the fees of their legal counsel.

Mediation versus Court – Now That is the Question

Though prospective clients frequently frame questions, during our initial consultations, as a choice between hiring a mediator or retaining a lawyer, as discussed at the start of this article, clients can fare well in mediation with or without a lawyer. So, the mediator versus lawyer question is not the most important question for clients to assess when evaluating mediation as a dispute resolution option. The most important question is whether clients wish to pursue mediation or litigation.

Litigation is most commonly associated with the court system. It is no surprise that the court system is hinged on the perspective that there is a right and a wrong party, a good and a bad. Mediation, on the other hand, looks to find points of agreement so that parties are as satisfied with outcomes of the mediation. Due to this agreement management approach, mediation is more and more being presented as a viable and even preferable alternative to litigation when it comes to dispute resolution. In fact, the Government of Canada has been actively encouraging parties who are pursuing civil disputes to participate in mediation through the mandatory mediation program; this is because mediation:

a. Takes less time to arrive at resolution since parties do not have to wait for court dates;

b. Is less costly than litigation; this is due to the fact that costs are shared among disputing parties and mediations tend to take less time from start to finish;

c. Is a more positive and much less adversarial approach, that resolves disputes to the greater satisfaction of all parties with less damage to relationships of disputing parties.

Given these benefits of mediation over litigation, it is no surprise that the government is moving forward with a family mandatory mediation program in which parties involved in family disputes (namely marriage dissolution) to pursue mandatory mediation. One might imagine that time and cost savings as well as relationship preservation are critical for these types of disputes.

Summary

Disputing parties aim to find a way in which to maximize their satisfaction with the outcomes of a dispute as expeditiously as possible, particularly when the stakes are high. Potential clients are often under the impression that when in a dispute their central choice is whether to hire a mediator or a lawyer. In this article, it is suggested that while there are definite benefits to pursuing the services of a mediator alone, there is nothing inherently incompatible between retaining the services of a lawyer and of a mediator. In fact, the choice is often a matter of clients’ comfort level.

Further, it might be said that the real choice and the important question is whether to mediate or litigate. Unlike the question of whether to hire a mediator or lawyer or both, the question of whether to mediate or litigate can have real implications for the outcome of a dispute and can be far-reaching. While litigation is typically an adversarial, lengthy and costly process, mediation is typically less damaging to relationships (it is conciliatory and focused on agreement management), it takes far less time (parties do not have to wait for court dates, lawyers schedules, examination, discovery etc.) and it is less costly. It is for these reasons that the government is increasingly supportive of mandatory mediation programs in which parties are encouraged to pursue mediation as a bone fide alternative dispute resolution model to litigation.

It is the question of whether to mediate or litigate – not whether to pursue the services of a mediator or a lawyer – that has the greatest implications for the tone and outcome of the dispute resolution process; it is this question that clients should spend considerable time contemplating.


TheMediator.ca is a full service mediation firm that specializes in business mediation and workplace mediation. Our experience, professionalism and personable, customized service make us a leading choice for all of your mediation solutions.

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