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Mediation
By Alan R. Gray
In a mediation, a neutral party (the mediator) assists the parties to the dispute in communicating effectively with each other, directly or through their lawyers, to resolve their dispute by agreement. Mediation is usually a voluntary process.
All communications in a mediation are “without prejudice” to the legal rights of the parties to the dispute, in the sense that no reference to those communications can be made in a process for the determination of the dispute by a binding decision.
A mediator will often encourage all the parties to the dispute to make realistic assessments of their legal rights, express their own interests, and consider the interest of other parties to the dispute. By doing so, the mediator can often assist the parties to resolve their dispute by agreement.
Judicial Dispute Resolution
In Alberta, the parties to civil actions (litigants) in the Court of Queen’s Bench can voluntarily attend with their lawyers before a judge of that court for a mini-trial or judicial mediation. All communications made for the purposes of mini-trials and judicial mediations are kept confidential by the judges who conduct them; and are “without prejudice” to the legal rights of the litigants, in the sense that no reference to those communications can be made at trial.
Mini-Trial
In a judicial mini-trial, the lawyers for the litigants make submissions to a judge on the relevant facts (usually on the basis of agreed facts, discovery evidence, and expert reports if there are issues on which expert evidence is required) and on the applicable law. Those submissions are usually made in writing before the mini-trial and summarized orally in the presence of the litigants at the mini-trial. The judge gives a confidential and non-binding opinion of how the dispute between the litigants would likely be determined at trial. Often, the opinion will assist the litigants to resolve their dispute by agreement.
Judicial Mediation
A judicial mediation is conducted by a judge. Prior to the mediation, the lawyers for the litigants usually make written submissions to the judge. The submissions usually include brief summaries of the relevant facts and the applicable law. At the mediation, the judge will usually give the litigants an opportunity to express their interests. Often, the judge will give an indication of the strengths and weaknesses of the positions of the litigants (on the facts and the law) without giving an opinion as to how the dispute between the litigants would likely be determined at trial. The judge may also give some indication of how the interests of the parties could be considered by them in resolving the dispute. Most judicial mediations result in resolution of the dispute by agreement.
Selection of Process to Resolve a Dispute
The selection of the process that will most likely result in a resolution of a dispute by agreement of the parties will depend on the impediment to resolution. If the only impediment is a lack of understanding of the legal rights of the parties, a resolution of the dispute may result from objective assessment of those rights by lawyers representing the parties in negotiations, or by a neutral evaluator, or by a judge in a mini-trial. If there are other impediments to resolution, a mediation to explore the interests of the parties may be more effective.
Approaches to Dispute Resolution
Positional
In the positional approach to dispute resolution, the parties make statements of their positions and counter-positions. Often, the parties become entrenched in their positions, without fully expressing their own interests or considering the interests of other parties to the dispute. This can result in a “win/lose” situation, or a compromise that is not really satisfactory to any of the parties.
Collaborative
In the collaborative approach to dispute resolution, the parties:
(a) Explore their interests;
(b) Attempt to identify common interests;
(c) Apply objective criteria;
(d) Communicate assertively and emphatically;
(e) Try to be creative in resolving the dispute; and
(f) Look for a “win/win” resolution.
Selection of Process to Determine a Dispute
Where the parties have an interest in keeping their dispute confidential, they may decide to have the dispute determined by arbitration (rather than by litigation).
Where the parties have a need for a public forum, they may choose to have their dispute determined by litigation.
Efficient, Economical and Prompt Determination of Disputes
If a dispute cannot be resolved by agreement of the parties, it may be in their mutual best interest to at least agree as to the steps to be taken to have the dispute determined by a binding decision of a judge or arbitrator in an efficient, economical, and prompt manner.
Experience of Weir Bowen LLP in Resolving Disputes
Weir Bowen LLP has lawyers who have the training, skill and experience to advise parties to legal disputes as to what process will likely result in resolution of the dispute, and to represent them effectively in any process that they choose to use.
Weir Bowen LLP also has lawyers who have the training, skill and experience to act as facilitators, neutral evaluators, mediators and arbitrators.
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