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Disputes of all kinds. Businesses, neighbours, contractors, medical treatment, etc. etc. Disputes leading to court litigation. Active court cases. They all take a lot of time, time better spent on other things. They are expensive. An emotional burden. I have watched thousands of people go through this system of intense nasty discord. This is the adversarial system.
Mediation is a quick, efficient, fast and fascinating way to avoid a lot of wasted time, unnecessary stress, anxiety, and often considerable expense. Mediation allows you to settle your differences and move on. Mediation can settle a matter in hours. A court case can take years. Mediation is a fast, inexpensive way to assist parties in a dispute to settle out of court.
Arbitration is different than mediation but is still another way to have a matter in dispute avoid the cumbersome, time consuming, and slow court system. An appointed impartial arbitrator, chosen by the parties, hearing evidence and arguments from both sides, decides the matter once and for all. The arbitrator’s order can then be filed and enforced the same as a court judgment. Arbitration is not assisted negotiation, but it still has many advantages over court litigation. Like speed. And privacy.
Both mediation and arbitration can work.
I know this. I was a lawyer for 35 years.
Mediation is professionally assisted negotiation to a dispute between two or more parties who want to settle their differences out of court. A mediation can take place at any time, before a lawsuit has been started, after a lawsuit has been started, even right up to a scheduled trial date. An unbiased neutral person, the Mediator, gets familiar with the facts and law of the case, assembles the people involved, and the process begins. Mediations usually take place in a law firm’s office, a hotel or other meeting room, or by ZOOM.
Mediations are almost all conducted in a basic similar way. The mediator at the outset goes over general rules to be followed (no name calling or interrupting!). After preliminary matters conclude, the mediator hears from both sides and then separates the people for private discussions with them, brings them back, separates them, delivers offers and counteroffers, what I call “backing and forthing”. Although it can get heated at times, the goal is to get a signed deal which settles all differences. Cases I took to mediation as counsel were 90% successful. And a few of the unsuccessful cases settled soon after.
Note: Mediation is mandatory in all Ontario Superior Court of Justice cases in Ottawa, Toronto and Windsor/Essex County*
Arbitration is another way to resolve a dispute out of court. Arbitration is final. Arbitration can be expensive but most of the time, arbitration is faster and less expensive than litigating matters through the court system.
Arbitration features, both pro and con:
Med-Arbs begin as mediations. If no deal is reached the mediation transforms into an arbitration, and the mediator, who is now the arbitrator, then decides the matter.
A few years back my wife and I had to sue a dishonest contractor. Even though I had been a practising lawyer for decades, I had never sued anybody myself. I have to admit, it was a stressful, anxiety-inducing ordeal.
In my opinion here are the main features of both mediation and arbitration:
Peace of mind is gained from early closure and finality
As I said earlier, these procedures, particularly mediation, take hours. Going through the court system takes years.
Don’t just take my word for it:
“Canada’s civil-justice system is breaking down, mired in procedures that no longer make sense. The search for justice has become a nightmare of legal skirmishing, with runaway costs, financial and emotional, beyond the vast majority’s ability to bear”
“Unbearable”
“The conventional trial, the (Supreme) court said, had become “illusory” because it took so long and cost so much to get there that few could afford it.”
“scores of judicial vacancies unfilled. …”
“…new approaches are available…cases are often settled through mediation”
settle your differences and move on
“If you are in a dispute and want to avoid the costs, delay, and angst with court litigation, call me. Let’s see if I can help. No charge.”