Mediation is a non-binding alternative dispute resolution process. The mediator has no power to make any decision or impose any result on those in the dispute. Rather, the mediator helps facilitate discussions about the issues in dispute and assist the parties in crafting a mutually acceptable settlement.
Mediation gives the parties control over the negotiation process and, most importantly, the result. Unlike a trial or arbitration, where the decision making is handed over to a judge, jury or arbitrator, the parties involved in the dispute work toward and craft a mutually acceptable settlement agreement.
Mediation gives the parties a voice in the settlement process. The parties and their legal representatives are afforded an opportunity to present their views in an unfiltered fashion directly to the opposing parties and their legal representatives. It gives those involved in the dispute an opportunity to get things off their chest or mind or to clear the air. It gives those involved in the dispute access to the ear of the decision-maker on the other side of the dispute.
Mediation can occur relatively early in the dispute. In busy judicial centers, trial can be several years away; mediation provides an early opportunity to discuss the issues in dispute and potentially resolve the dispute.
Mediation is flexible [as compared to the litigation or arbitration processes which are generally rigid and governed by rules of practice and procedure]. The parties to the dispute may want to spend extended periods of time together or never be together. Mediation can be whatever the parties to the dispute and their legal representatives want it to be.
Mediation is certain. If settlement is achieved at mediation, the result is clearly known and understood and must be acceptable to the parties who have entered into the settlement agreement. Litigation and arbitration are uncertain. Think about it this way – there are probably hundreds of lawsuits and arbitrations pending on any given day in various court houses and board rooms throughout Ontario. In each and every dispute, each side is convinced that they are right and they will win. 50% of those people will be wrong.
Mediation is inexpensive [relative to the overall costs of litigation and arbitration]. There is no question that legal representatives spend considerable time and effort developing their respective cases in preparation for mediation; this cannot and should not be avoided as mediation is a very important step in the dispute resolution process. However, most mediations can be conducted in the course of one day in a relatively low stress environment. Most lawsuits and arbitrations consume two weeks or more. Moreover, the costs of experts at trial or at arbitration can be avoided.