What is Mediation?
WHAT IS MEDIATION?
Mediation is a voluntary process in which all parties to a dispute work with an impartial mediator who assists them in finding ways to resolve their conflict. Different than litigation or arbitration, mediation is not a win/lose determination. A skilled mediator facilitates a solution to the problem which best fits the needs of both parties; the mediator does not decide who is right and who is wrong. Because mediation is similar to negotiation (except that there is a neutral party guiding the process), it is often referred to as facilitated negotiations. The terms mediation and facilitated negotiations are used interchangeably in this article.
The primary benefit of mediation is risk and cost control. Because the parties arrive at the solution (rather than a judge or an arbitration panel making a ruling) the disputants maintain control of the entire process. This method of settlement is followed by negotiation and then, historically, arbitration and/or litigation. [The opportunity to mediate has often been overlooked].
With mediation, a third-party neutral is brought in to keep the parties working together rather than turning the problem over to the legal departments. The mediator, acting in a neutral capacity, facilitates continued negotiations by pointing out the benefits of a cooperative settlement vs. a ruling by less informed arbitrators or the courts. The cost of the mediation is usually shared and is nominal by comparison to the classic forms of dispute resolution -- arbitration or litigation. Cost and risk for each party increase exponentially when the dispute crosses the line from a situation where the parties resolve the dispute themselves to a situation where someone else resolves the dispute.
Different from arbitration or litigation, in mediation neither party has to lose. Mediation is the method of handling disputes which provides the greatest opportunity for win/win solutions. And, because the parties arrive at the solution, there is a very high probability that the solution will be carried out as agreed.
Mediation is an excellent forum for the resolution of construction disputes, contract disagreements, and equity claims. Simply put, any situation that would otherwise be arbitrated can be mediated. In fact, in most contract disputes the parties could benefit from mediation. Even if the issues are so complex and emotional that arbitration or litigation is inevitable, the issues can be narrowed by first submitting the dispute to mediation.
THE ROLE OF THE MEDIATOR
The effective mediator has a challenging role. He/she is faced with a situation where the parties may be emotionally charged as the result of protracted, unsuccessful negotiations. One of the first objectives of the mediator has to be to 'de-energize' the situation and get the parties focusing on the real problem and real solutions; not who is at fault.
TIME AND COST
Because the mediation process is non-binding there can be less concern over having the dispute fully detailed before trying to reach an agreement. Therefore, the otherwise necessary months of information gathering by the lawyers can be drastically reduced or eliminated. Meditation is truly more of a businessman's solution to the problem. As such, it can be achieved with less preparation and far less disruption to the businesses and individuals involved.
Further, since the process is inherently faster, it is far less costly to resolve a dispute through mediation than through arbitration or litigation. Because of the non-adversarial dispute resolution technique used, complex issues can be satisfactorily resolved in a matter of days; and, the important business relationship of the parties can be preserved
The cost of mediation, ranging from $1,500 to $2,000 per day, that is shared by the disputants. Typically, issues can be mediated in less than a week. Imagine solving a major dispute for less than $5,000 in processing fees. Compare this to the tens of thousands in legal expenses necessary to pursue an arbitrated solution or a court decision, and the need for mediation in construction contracting becomes quite apparent.
SELECTING A MEDIATOR
There are many individuals with different credentials that they may bring to the table. If you are unfamiliar with what sets various mediators apart it may be more comforting for you to choose your mediator from a federal or provincial governing body. In Canada, we have the Alternative Dispute Resolution Institue of Canada (ADRIC) with provincial candidates who have gone through their assessment and proven the education required to be included in the directory ADRIA - is the Alberta division. You can go onto their directory to find a specific level of mediator as we have 3 levels. Certified Mediator - completed all education requirements Qualified Mediator - completed education and some practical experience and Chartered Mediator - Completed all education, practical experience and has demonstrated some leader, teaching/ mentorship, and coaching ability within their expert level.
Click on the link below to check out the directory