TABLE OF CONTENTS:

An Alternative to Litigation Confidentiality Voluntary Process
The Process The Mediator




AN ALTERNATIVE TO LITIGATION

Mediation is rapidly developing as an alternative to litigation to resolve disputes. The cost of litigation is said to average $37,000 and to take 2 to 3 years to complete. The result is rigid, and a court cannot deviate from established law to arrive at innovative solutions. Over 90% of cases started in the courts are settled before trial, but after a lengthy and costly court oriented process.

 

A VOLUNTARY PROCESS

Mediation is voluntary. The parties in most cases decide to take this route as an alternative in the hopes that the litigation process can be stopped or avoided. Ontario's Attorney General recently announced that all (except family law) cases started in Ontario have to go to mediation before they can proceed in court. It is expected that the parties will be required to attend a mediation hearing, but no solution will be imposed on an unwilling party.

 

THE MEDIATOR

A mediator (an independent neutral person) chosen by the parties helps the parties to work out their own, mutually acceptable agreement to resolve their dispute. The mediator focusses on the interests of the parties rather than their apparent positions. Once the parties' interests are defined the mediator helps to choose options that may satisfy the underlying interests.

 

CONFIDENTIALITY

Mediation is a confidential process. Nothing that occurs in the process or any documents submitted need be made public. In litigation the documents filed with the court become public documents, allowing the parties' laundry to be aired in public.

 

PROCEDURE

  • prior to the mediation the parties or their lawyers usually file a summary of the dispute and the positions of the parties to allow the mediator to familiarize himself with the matter;
  • the mediator explains the process;
  • each party or its lawyer provides a brief oral summary of the views of the party as to the issues in dispute;
  • the mediator attempts to determine the exact nature of the issues in dispute;
  • options are generated that might satisfy the issues;
  • objective criteria are applied to the options to determine their suitability;
  • the mediator may talk privately ("caucus") with each party to examine various scenarios, and to compare them to the best and worst alternatives the parties have;
  • if agreement is reached, it can be set out in writing and acted upon.
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