Litigation is a brutal experience – it’s expensive, slow, and unpredictable. Given that the parties are encouraged to be adversarial, most people find the process to be very unpleasant and stressful.
Litigation lawyers and their clients often prefer mediation to litigation for good reason –
- it is less risky;
- it is more efficient economically;
- it is quicker than going to court; and,
- the mediator, as a neutral person, can help bring clarity to the negotiations by encouraging the parties to abandon the kind of aggressive posturing that tends to accompany an adversarial contest.
It is important that the mediator remains strictly neutral between the parties. Mediators use a variety of techniques to facilitate a negotiation but two dominate: facilitating a dialogue between the opposing parties (and their lawyers) and evaluating the strength of a party’s case in a confidential discussion with a party and his or her lawyer where appropriate (and that discussion is never disclosed to the other side).
In my opinion, mediation works best when the mediator is fully prepared and understands what is at stake for both sides. The mediator should be knowledgable, capable of fostering a civil and respectful environment, and keeps the parties on task. The mediator must ensure that bad behaviour, bullying, and threats are left at the door. The mediator can stand back and identify common interests, areas where the parties can agree, and help locate that sweet spot where negotiations produce an agreement. When done well, good results follow.
I offer mediation services in Toronto, Ottawa, and Kingston and would be happy to discuss my approach with litigants and/or their lawyers. You may find it of assistance to review the Mediation Agreement before we talk.