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July 24, 2014

Mediation: The faster and less expensive path to resolution.

By Steven Z. Raber

When people think of hiring a lawyer to resolve a dispute, they often have in mind that their problem will ultimately be resolved at a trial with a judge ruling in favour of one party and against another. This understanding, perhaps reinforced through the media, often does not represent the reality. Experience has taught us that most disputes of all kinds settle.

For the longest time, it was not uncommon for parties to go through all the steps of litigation, from pleadings through documentary and oral discovery, only to settle, sometimes “on the courtroom steps.” Given the expense of litigation, Alternative Dispute Resolution (“ADR”) processes, mediation amongst them, were developed to assist parties achieve settlement sooner and cheaper than by going through court or similar proceedings.

Unlike courts and tribunals, a mediator assists the parties in reaching settlement through consensus and does not impose a decision. Resorting to the courts and tribunals generally involves one side winning and the other losing, or what some have referred to as a “zero-sum game.” Using mediation to resolve disputes allows all parties to “win,” as the terms of settlement generally are limited only by the parties’ imaginations.

Mediation is usually a voluntary process whereby the parties, often assisted by counsel (although this is not a requirement), meet with an independent mediator whose job is to assist the parties in reaching settlement. In some jurisdictions, the mediator is a judge or other judicial official; in others, a person selected by the parties. In all cases, the mediator must be an independent, unaffiliated person. Where the mediator is selected by the parties, the mediator may have some special training in the subject matter of the dispute.

It is generally agreed by the parties and the mediator that the mediation sessions are to be entirely confidential in nature, so that anything said during the mediation process may not be repeated elsewhere, including court or other proceedings in the event the mediation fails and the dispute is litigated. This allows the parties to explore settlement possibilities without worrying that what they say may be used against them. They may also bring into the settlement discussions matters that would not be relevant to the dispute itself. Parties may be prepared to make concessions regarding the matter in dispute if they obtain advantages in other, unrelated, areas.

Because mediation has proven to be so successful in resolving disputes, some jurisdictions have made mediation a mandatory step. When parties enter into mediation voluntarily, one would expect that they are motivated to settle and, hence, settlement rates are high. Even in those circumstances where the parties are obliged to go to mediation, it has been reported that settlements result in about 50 per cent of cases.

In Manitoba, mediation is not mandatory. Wise parties, understanding the expense of litigation, will nevertheless agree to hire an independent mediator to assist them in resolving disputes without the need for litigation. Because the court is not involved, even the very fact that a dispute exists is kept confidential.

Mediation may also be an option after litigation has been commenced. Once again, the mediation process and the result achieved can be kept entirely confidential.

It should be noted that in some courts, including Canada’s Federal Court, judges and other judicial officials will act in a role similar to mediators. These sessions, often termed Judicially Assisted Dispute Resolution conferences, can also be quite effective in assisting parties reach amicable resolutions to their disputes.

Although we are quite able to guide our clients through the litigation process, we are mindful of the need to assist our clients in obtaining positive results as quickly, efficiently, and economically as possible. To that end, mediation is an extremely effective tool that cannot be overlooked.

Steven Z. Raber, LL.B., F.I.P.I.C., is a lawyer, trained mediator and registered trademark agent. He may be reached by direct telephone at (204) 957-8304, by direct facsimile at (204) 954-0304, or by email at stevenraber@FillmoreRiley.com

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