Mediation is an essential tool in alternative dispute resolution, with hundreds of mediations occurring daily across Canada and developed countries. Despite its widespread use, many individuals come to mediation unprepared and unfamiliar with the intricacies of the legal system. This lack of preparation can lead to confusion, frustration, and missed opportunities for resolution. To maximize the chances of a successful outcome, it is crucial for all parties involved to understand the process, manage their expectations, and prepare thoroughly before stepping into mediation.
The most common challenge participants face when entering mediation is a lack of understanding of how the legal system works. Many people involved in disputes may not have had any prior experience with legal proceedings, and as a result, they may struggle to navigate the complexities of the mediation process. Depending on the legal issues, it is common for individuals to be represented by lawyers throughout the process. However, sometimes there can be gaps in the communication between lawyers and their clients regarding how the process works and what to expect. Both lawyers and clients need to take the time to ensure they understand the process, potential outcomes, and options, in order for the mediation to proceed smoothly.
Think about it this way: if you are not an architect, can you design a building? The answer is no. Similarly, if you are unfamiliar with the court system, you may not fully understand how mediation fits within that broader context. Mediation occurs in the “shadow of the law”, meaning it takes place with an awareness of legal principles and potential court outcomes. However, it’s crucial to note that a mediator is not a judge. The mediator does not have the authority to make decisions or impose rulings like a judge would. This distinction can be confusing for those who come to mediation with the expectation that the mediator will make binding decisions on the matter at hand.
While it is true that some mediators are retired judges and lawyers, it is essential to understand that regardless of their experience, they are solely acting in the capacity of a mediator while conducting a mediation session. The role of a mediator is to facilitate communication and negotiation between two or more parties in conflict, helping them to reach a mutually acceptable resolution. Mediators are neutral third parties who do not take sides but instead focus on guiding the process to ensure that each side has an opportunity to express their concerns, interests, and needs. The goal is to help the parties find common ground and work together to resolve their dispute without resorting to litigation.
Cultural factors and personal experiences can also influence how people approach mediation. For instance, some parties may come into the process with an inherent respect for authority figures, based on past experiences with legal or professional settings. Social psychology research, such as the famous Milgram experiments on obedience to authority, have shown that people are often willing to follow instructions from authority figures, even against their own better judgment1. In the context of mediation, this can manifest as an over-reliance on the mediator or opposing counsel, leading to reactions that may not be in the party’s best interest.
Understanding the mediator’s role and recognizing that they are not a judge helps to manage expectations before the mediation process begins. The mediator’s job is to facilitate dialogue and help parties find common ground. A mediator’s job is NOT to dictate outcomes, take sides, or give legal advice. Preparing for a mediation involves acknowledging that the mediator is a neutral party, not someone to be blindly obeyed or feared. For many, the road to litigation is long, expensive, and full of delays. Disputes can take years to get to Court, creating a sense of urgency when the opportunity to mediate finally arrives. People often carry the emotional and mental burden of their case for an extended period before mediation takes place, leading to high levels of stress and frustration. However, it is important to manage the expectation that mediation will provide an immediate resolution. It is up to the parties to find a mutually acceptable resolution.
In 1994, Minister of Justice Allan Rock spoke to the Canadian Bar Association regarding Alternative Dispute Resolution and made the following statement: “The volume of business in our courts and tribunals, the prohibitive cost of extended litigation and the delay in its disposition is shaking the public’s confidence in our very system of justice. We cannot allow that to continue!2”. Due to the slow-moving legal system in this country, people often expect that their grievances will be addressed and resolved quickly during mediation. However, the process of mediation, while a lot faster and cheaper than going to litigation, still requires careful negotiation, deliberation, and compromise. While mediation is the best alternative the litigation, parties must be realistic about the time frame and likelihood of a quick resolution.
Before attending mediation, parties must be clear about the basics of their case. What exactly is the claim being made? What damages are being sought? Without a clear understanding of these key components, it’s difficult to engage effectively in the mediation process. This is why education and communication amongst clients and their lawyers is critical before commencing mediation. Mediation is not just about discussing feelings or airing grievances, it is about identifying the underlying issues and determining potential solutions. For example, understanding the nature of damages – whether they are financial, emotional, or reputational – can help both parties assess the strengths and weaknesses of their positions. Similarly, each party should be able to articulate the specific relief or outcomes they are seeking from the mediation. Without this clarity, parties may struggle to engage productively.
When parties arrive at mediation, they often bring with them a sense of frustration, which can sometimes lead to unproductive reactions. Parties may react impulsively to the demands and offers made during mediation, especially if they feel pressured to make decisions on the spot. This is why preparation is necessary. When parties are prepared, they are more likely to remain calm, collected, and open to dialogue, rather than being driven by emotional impulses. A common scenario that illustrates this is the “joint opening” at the start of many mediations, where both parties are expected to outline their theory of their case. It is important to be aware that opposing counsel may present arguments and numbers that are unexpected, or often deemed as unreasonable by the other side. Without being made aware of this possibility before mediation, this can create confusion or frustration and could result in parties becoming reactive, taking away their focus from resolving.
In mediation, informed consent is a fundamental concept. Informed consent means that both parties must fully understand the implications of any potential resolution before agreeing to begin with the mediation. Without proper preparation, there is a risk that one or both parties may agree to a resolution without fully comprehending its consequences3. While it is the mediator’s job to ensure the parties reach a W.I.S.E agreement, which means an agreement that meets the legitimate interests of each side to the extent possible, resolves conflicting interests fairly, is durable and takes community interests into account)4, it is helpful for the parties to keep this concept in mind. This is why understanding the legal and financial implications of the case, and having clear expectations going into the mediation is crucial to making informed decisions.
Mediation is a powerful tool for resolving disputes, but it requires careful preparation to be effective. The key to success lies in understanding the process, setting realistic expectations, and ensuring that all parties are fully informed. By preparing in advance, and knowing what to expect, parties can manage their emotions, avoid confusion, and engage in the mediation process with a sense of purpose. Whether you are a first-time participant or someone with prior experience in legal disputes, preparation is essential to navigating the complexities of mediation successfully. From understanding your claim and damages to managing your expectations about the outcome, the more you prepare, the more likely you are to achieve a resolution that meets your needs. This is why preparing for mediation is an absolute necessity.
This article is written thanks to the guidance and suggestions of Bruce Ally who proposed the topic and suggested much of its content based on the comments Emily had made with respect to the process and some of her observations surrounding the participants in mediation during her internship.
Envision you are about to travel on a journey from a place of conflict to a place called resolution. As with any journey, there should be steps taken to ensure...
By Steven GoldmanCode of Civil Procedure Section 664.6 Is Now Lawyer-Friendly Most settlement agreements provide that the entire action shall be dismissed and the court shall retain jurisdiction under Code of Civil...
By Michael DilibertoDisputing Blog by Karl Bayer, Victoria VanBuren, and Holly HayesJean R. Sternlight, Michael and Sonja Professor of Law at the University of Nevada, Las Vegas William S. Boyd School of...
By Beth Graham
