Both mediation and arbitration are methods of Alternative Dispute Resolution, or ADR for short.
The role of courts since inception has been “dispute resolution”, so why the need for an “Alternative”? The answer is because the court system does indeed work in theory, but rarely in practice. The courts are hopelessly backlogged. “Hopeless” because what seemed like the light at the end of the tunnel is an oncoming train. Even as courts re-open, getting a hearing date for any procedural motion that requires more than one hour of judge’s time is an insufferable process.
It used to be that a lawyer for a defendant would have to be creative in developing reasons for delaying a case. Not anymore. Looking for a trial date? Not this year. Not next year.
The problems are acute in the judicial regions surrounding Toronto in part because of their huge increases in population. Criminal cases understandably take precedence to avoid dismissals for delay. A younger suburban population means more family law disputes.
An “Alternative” is to try to settle the dispute with the help of a trained, neutral mediator who has no skin in the game. As of this writing, Ontario has failed to implement province-wide mandatory mediation as a pre-condition to get a trial date. Only the courts in Ottawa, Windsor and Toronto require mediation to take place. Elsewhere, it remains entirely voluntary. But the huge legal costs of civil litigation and delays have prompted clients to ask their lawyers to consider mediation.
The mediator’s objective is to be a deal-broker, usually engaged in shuttle diplomacy between the two groups, keeping the parties talking, negotiating, and weighing the pros and cons of continuing the path to trial.
But it has its limits. All the mediator can do is facilitate communication and negotiation. The mediator has no authority to make a decision. No one presents “evidence”. The parties prepare a concise “Mediation Brief” including the formal court pleadings, a summary of their arguments, and sometimes a few key documents. There are no guarantees of success.
The increasing use of and interest in mediation can be summed up:
- Speed and the ability to schedule dates
- Flexible and creative solutions that a Judge could not order
- Confidential, unlike a public court hearing and court decisions
- The ability to select a mediator with subject matter expertise
In cases where the parties will have to continue to deal with each other such as a property boundary dispute, estates disputes, or in family law, a mediated settlement might become a peace treaty.
But the place where mediation really shines and where a good mediator proves their worth is the negotiation of creative solutions that no court could ever order. Courts declare winners and losers. What the case may need is an apology. It might be resolution of a shareholder buy/sell dispute with an “auction” to see who is willing to pay more to be the buyer. It can be the negotiation and payment for a deeded right-of-way or easement across the neighbour’s property to get access to a cottage.
The importance of subject matter expertise cannot be overstated. Ask a contractor who went to trial before a judge that did not previously realize that a 2×4 is actually 1 ½ x 3 ½ inches. The mediator with subject matter expertise has a deeper understanding of the issues and the way they play out in the real world. That mediator can provide the parties with a credible analysis of their respective positions and to find the common ground that can settle their dispute.
The mediator needs to understand and have experience with the relevant laws that will govern the outcome. This is critical in complex or specialized litigation where the mediator can temper client expectations. The mediator’s expertise can lead to creative solutions that the parties have not considered. Very often, that expertise and local knowledge allows the mediator to explain complicated legal or technical issues in a way that the clients understand, and to make the parties focus on the key issues. Judges do not need the interpersonal skills that build trust in evaluative mediation solutions which address the needs and interests of the clients.
Mediation does have its downsides. Particularly in family law, but elsewhere as well, power imbalances may result in a process that may be neither fair nor equitable. Then there is the mediator’s own (often unconscious) agenda to get cases settled, keep up a batting average, or the desire to get more mediation assignments. That can result in the mediator pushing harder on the party or the lawyer that is easier to push. Mediation can be time-consuming, and it is not inexpensive. But compare that to the cost of a trial.
– Morris Cooper, Mediator and Arbitrator