Not every dispute needs to be resolved in a courtroom and not every solution is best defined by the law on the books. When parties want to have some control over the outcome of a dispute, there are alternative options to resolving legal conflicts. Mediation is a consensual and voluntary process in which parties have control over negotiating their own confidential outcome, with the help of an independent and neutral third party.
Having practiced law for nearly 20 years, Mr. Schwartz’s experience stems from handling complicated civil and commercial litigation matters in all levels of court in British Columbia and other jurisdictions in Canada.
What happens in a mediation?
A mediation session takes place in setting that is less formal than a courtroom environment, allowing the parties to be alleviated of the strict rules which typically accompanies a court hearing.
The mediator starts by introducing the processing and setting basic guidelines for discussion. He or she may ask the parties to describe their view of the case and outline what they hope to achieve in the session. If the mediator feels that allowing the parties to give their own statement would have the result of creating a divide before the session has even started, the mediator will provide a brief synopsis of the facts and issues, summarized from the written mediation briefs exchanged by the parties in advance of the mediation.
During the mediation, the parties and, if represented, their lawyers will explore the legal issues and uncover the underlying interests beneath the issues. Discussions and negotiations will occur in the presence of all parties, or at other times, if the mediator feels would be beneficial to the parties, discussions will occur in private with the assistance of the mediator. Unlike court proceedings, parties in mediation are encouraged to participate actively in the negotiated discussions because it’s the parties who will ultimately determine the best outcome.
If a resolution is reached, the parties will draft an agreement to reflect the terms of the agreed outcome. If one or more of the parties are self-represented, they are encouraged to seek the independent legal advice before finalizing the agreement, to ensure what is reflected on the agreement is what they agreed to in mediation.
Because the mediator has experience conducting court proceedings as a lawyer, the mediator will have insight as to how they think a judge would decide on the issues if the matter was in court. Mediation assists by allowing the parties to see the dispute from the other side’s perspective, and from a judge’s point of view. Opening up the lines of communication directly between the parties often results in effective resolution that both parties had control in deciding, as opposed to allowing the dispute to be resolved in court. Agreements in reached in mediation are often more sustainable and workable for both parties.