An increasingly commonly used device to enhance prospects of settlement is mediation. Samuel A. Mossman trained as a mediator in the mid-1990s and has participated in hundreds of mediations, either as a mediator or on behalf of one of the parties. Effective representation at mediation requires its own unique set of advocacy skills that are acquired and sharpened through years of experience.
Tools of Mediation
An important tool in an advocate’s tool chest is the ability to negotiate effectively. Most cases are settled before a trial takes place and successful settlement requires skilful negotiation.
At the centre of the justice system in Ontario is the trial, thought to be the most or one of the most effective means to resolve a legal dispute in accordance with the law and established legal principles. Most trial lawyers believe in the trial system but recognize that, in our modern system of exhaustive pre-trial discovery and document disclosure, the cost of taking a case from beginning through to a trial is often very costly and fraught with risk. The cost of a trial is often disproportionate to the amount in issue in the claim.
In this difficult and challenging environment, mediation has increasingly become a viable alternative to the trial process. Mediation entails the parties, usually and preferably represented by lawyers, meeting in an “off the record” setting with a mediator to attempt to find a satisfactory solution to the issues at hand. The mediator is a facilitator who encourages each of the parties to recognize the merit of the other side’s position as well as any weaknesses in his or her own position. The mediator also encourages the parties to recognize the cost and risk of litigation and to find creative ways to bridge the gap between their positions, resulting in a negotiated settlement.
A skilled mediator helps parties opposed in interest to find common ground.
Benefits of Mediation
The benefits of mediation include:
A skilled lawyer knows that engaging in mediation is challenging and requires well-developed skills in the arts of persuasion and negotiation, as well as thorough preparation.
Not for Everyone
A skilled lawyer also knows that it is not every case that can or should be mediated. Parties to litigation are often of unequal bargaining power. That is particularly true in family law matters, where it is common that one of the spouses has been accustomed to exercising dominion and control during the relationship and the other party is more submissive. Family law cases in which there has been a history of domestic violence are generally considered unsuited to mediation.
When Mediation is Appropriate
Mediation can be appropriate where both parties are prepared to enter into mediation in good faith in an effort to resolve the dispute, the facts of the case are known, there are no significant disputes as to the facts and there is not a serious dispute as to the interpretation of the law that might have a significant economic consequence, such a dispute often being best resolved by a judicial decision.
The decision to mediate should be made with a lawyer who can advise you whether mediation is appropriate and, importantly, at what stage of the legal dispute resolution process it should be considered as an option. The most effective mediation is entered into voluntarily by both parties, although there is in Ontario a mandatory mediation requirement for all non-family law civil court cases.
Often, particularly in family law matters, one party is anxious simply to get the case over with and will want to take any shortcut available to bring an end to the anxiety and uncertainty that accompanies a painful, personal legal dispute. Such a person is vulnerable to being taken advantage of in a mediation setting by an opposing party who may be far more focused simply on getting the best possible deal he or she can get without regard for the fairness of the deal or the welfare of the other party. In these cases, mediation should be approached with caution or avoided.
Do You Need a Mediator?
It is possible for parties to engage in mediation without the benefit of independent legal advice. Cases in which doing so might be appropriate are few and require that the parties have an equal or near equal bargaining power and desire to deal with each other fairly and respectfully. It is important to understand that a knowledgeable mediator will remain objective, independent and will not provide legal or other advice to either party. At minimum, parties who wish to represent themselves should obtain some legal advice so that they will have a good idea of what their legal rights and legal obligations are before engaging in mediation.
Mediation is a valuable tool, but it is not the “be all and end all.” It should not be seen as a replacement for the trial system as the centrepiece of the justice system. When used in appropriate cases, it is undoubtedly useful, but it should not be considered simply because of the perception that it is a cheaper way of achieving a solution. As important as it may be to resolve legal disputes, it is equally or more important that resolutions are fair and reasonable and are not achieved simply by one party capitulating and walking away from a meritorious position just to “get it done” or to save money. Those are the sorts of settlements that one comes to regret.
Arbitration is similar to mediation in that it is apart from the public court system--that is where the similarity ends. Arbitration can be likened to a “private court.” Unlike a mediator who facilitates discussion and negotiation, an arbitrator, like a judge, makes a decision that is binding on the parties subject to limited rights of appeal.
Benefits of Arbitration
Arbitration can be less expensive than a trial, even though the arbitrator is being paid directly by the parties. The parties, with the assistance of their lawyers and the arbitrator, have the flexibility to make their own rules with respect to calling witnesses, submitting evidence in writing, relaxing evidentiary rules, limiting the issues that have to be determined and otherwise streamlining the process.
A unique benefit of arbitration is that it’s private and confidential. Many times parties engaged in litigation over intensely personal matters do not wish to have their issues aired in a public courtroom (almost all trials in Ontario are conducted in a courtroom that is open and accessible to the general public as “justice must not only be done but be seen to be done.”)
Another benefit of arbitration is that the parties can choose who the decision maker will be and choose someone who they each respect, have confidence in and who has the required degree of expertise with respect to the issues that are in dispute.
Call Samuel A. Mossman to discuss the appropriateness of arbitration in your case.
Samuel A. Mossman: Mediator and Arbitrator
Samuel A. Mossman has a wide range of experience in many areas of civil litigation and is available to serve as a mediator or arbitrator for:
Mr. Mossman has undertaken comprehensive training in mediation and has engaged in hundreds of mediations, both as a mediator and as counsel for a party to the mediation process.
If you would like Mr. Mossman to mediate a case that you are involved in, whether you are presently represented by a lawyer or not, or wish to retain his services to act as an arbitrator, call his office to arrange an appointment to discuss your situation. Please note that Mr. Mossman will not act as a mediator or arbitrator for unrepresented parties unless he is comfortable that it is appropriate for him to do so.