18th September 2014
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To Mediate or Not to Mediate by Gayle E. Hiscocks

 In legal disputes there are various options to get the relief you are seeking.  One of the more popular options is to mediate the issues in the hopes of coming to an amicable agreement.  That being said, there seems to be some misunderstanding about WHAT mediation actually is.

A true “Mediation” requires the services of a qualified “Mediator” licensed to offer those services. The Mediator is required to be neutral in the proceedings and is basically there to assist the parties in staying on track and not letting emotions override the  ultimate goal.  Mediators charge a fee for their services and, depending on the complexity or emotional aspects of the matter,  could  require several sessions prior to reaching an agreement……if at all.  The idea is to have the parties themselves participate in the process  and have a hand in drafting the resolution between them.  The mediator will offer suggestions and gently direct the parties to their  goals while attempting  to assist them in seeing the other side’s point of view.  They can attempt to diffuse a situation if tensions start  to elevate, or give the parties a bit of a break if they feel it will calm things down.  In some situations, this is not a feasible or practical  solution in getting to an agreement.

Don’t get me wrong, I am all in favor of mediators assisting parties in their disputes.  But ONLY if the matter and the parties  are suitable for that process.  In some cases, that is not possible.  If someone comes to the table in bad faith, it probably will be a  waste of time and money.  If one or both of the parties does not come with an eye to resolution, it will not work.  If neither party is willing to be flexible in their position, in my opinion it has no hope of success.  

Mediation is not a venue for one to air their feelings of why they believe they have been wronged.  Nor is it an opportunity to sling mud at the other party.  It is a safe place to try to work towards an agreement that both parties can live with without being heavy handed or attempting to coerce the other side into submission.  If one is entrenched in their position and will not entertain giving up a little to get a little, in my opinion it will not be successful.  Not all mediators are lawyers so they are not able to ensure that the agreements that are arrived at are enforceable.  For example, if the parties agree to waive child support……..unenforceable. Child support is the right of the child and cannot be bargained away.  A lawyer who mediates would know that.  But if you have a mediator who is not legally educated they may not.

And sometimes after many sessions and many months you still might not be any closer to resolution than you were when you began.  In those scenarios I suggest that perhaps one or both of the parties did not come to the table in good faith or did not have an eye to resolution.  More mediation sessions will not fix that problem.  


A mediation is different from a four-way settlement conference.  A four way settlement conference is when the parties and their lawyers come to the table to try to hash out an agreement on the issues and narrow them down.  To see what the parties agree on and what they dispute.  Each party has their lawyer to advocate for them but again the idea is to come to the table in good faith with an eye to resolution.  All of these types of meetings are done on a without prejudice basis to ensure that the parties can feel comfortable in their exchange of ideas.  In some cases the whole file can be settled.  In some cases the parties can agree on some of the issues and come to an agreement on those matters while reserving the matters that remain in dispute.  Sometimes, unfortunately, the parties cannot agree on how to resolve the matter at all.  This does not mean that the meeting was a waste of time or money as the parties can then get an idea of the other side’s position and determine what options are best in resolving the issues.  And sometime the only way to do that is court.
 

While most individuals hope to deal with legal matters “amicably”, the truth is in some areas that is virtually impossible.  Take a high conflict divorce action for example.  Feelings are hurt, love is lost, and if there are children – the parties are obligated to deal with each other in making decisions on the children’s behalf.  That can be difficult if one party feels that they have been wronged in the relationship.  Or if one party has felt that there has been an imbalance of power in the marriage they may not feel comfortable being in the same room as their spouse as their ex may know precisely what buttons to push to get their intended result.  In those types of scenarios, court is the proper venue in my opinion.  You will get a result and it will be in accordance with the laws that govern the jurisdiction.  It is not a BAD thing to get things resolved in court.  That is what they are there for…….to resolve disputes.  

If one attempted to mediate the matters first but were not successful, the court will recognize that they tried to take the high road in an effort to resolve the situation amicably.  When meeting with potential clients for a consult I go over all of the options in resolving a dispute with the client and work with them to find the best avenue to pursue for their particular needs.  And sometimes…….that will require the assistance of the court.  It’s not a threat…….it’s getting a RESULT.  

 

For more information on this or any other legal requirements you may have, please contact me to set up a meeting.

E-mail Gayle at gehiscocks@stringam.ca, or call our Lethbridge office at 403-328-5577 or Fort McMurray office at 780-790-2022.  

 

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Written by Gayle Hiscocks