The law has evolved into straying away from costly litigation in Canada.
Mediation facilitates settle disputes and lawsuits out of court. In mediation, parties meet face to face and you have a neutral mediator who tries to guide the parties to the dispute to an amicable resolution. The mediator is not a decider of the dispute; instead, he or she is supposed to help you be open with each other and negotiate in a respectful manner. The intent is for the parties themselves to arrive at a mutually satisfactory resolution. However, when it is used in the litigation, personal injury, or family law contexts, lawyers are often involved in the process. That is, each party to the conflict has independent legal counsel.
Mediation is basically a process that has been designed to deal with unresolved conflict in legal situations. There are two ways that mediation deals with unresolved conflict:
- It manages the process, which is the problem-solving dynamic; and
- It tries to understand the context, which is basically what lies behind the conflict between the parties.
Mediation is a part of Alternative Dispute Resolution, which looks at various ways of resolving disputes without going to court, mediation being one of them. There is also arbitration, which differs from mediation in that it brings in a qualified arbitrator who has decision-making power. That means that the parties are bound by the arbitrator’s ruling. Arbitration is a bit more like litigation, but usually less costly.
Mediation is being used in many areas of the law to resolve conflicts nowadays. For instance, in Ontario, there is mandatory mediation for civil, non-family actions, and actions brought in contested estates, trusts, and substitute decision-makers. In British Columbia, mandatory mediation is in place for all civil lawsuits. In fact, all provinces have some form of mandatory mediation in place for certain areas of law.
Mediation isn’t just used before trials, though. Even during litigation, mediation can be used to negotiate settlements and/or dispute resolutions.
Mediation has become very important in family law. Family law is one of the most costly areas of law, and the courts often want to see an effort that the parties involved in disputes during divorce or child custody proceedings have made an effort to settle their issues beforehand.
In the family law process, usually the court is going to ask the parties to try to resolve the issues by themselves first, so mediation often takes place shortly before court or during litigation, unlike the collaborative family law process.
The law also imposes something called a settlement conference, as a last-ditch effort to avoid the case having to go to court. It is also a form of mediation between the parties except that, whereas the parties to mediation meet face to face, the parties in settlement conferences are separated and only talk through their lawyers.
Before a matter goes to trial, especially in family law, parties are greatly encouraged by the courts to try to settle matters on their own. Mediation can be a great tool to settling disputes, but it’s not for everyone. If you and the other party are in a bitter feud and meeting face to face is going to be problematic, this process may not be for you at this time. It’s always best to consult with a lawyer about the best way to resolve a dispute.