Area of Law: Alternative Dispute Resolution (ADR) - Arbitration and Mediation
Answer # 0533
The difference between mediation and a lawsuitRegion: Ontario Answer # 0533
Mediation agreement vs Judge’s order
An alternative to litigation that is being encouraged by lawyers, social workers and judges is mediation. Mediation involves the intervention of a third party professional who acts as a facilitator for the parties to help them reach their own agreement. Mediators generally have backgrounds as lawyers, social workers and psychologists. Research has found that generally, parties who mediate their own agreements have a greater tendency to actually stick to them. One theory is that this is because the parties have actively participated in the process, and feel that they each have had control of their own destinies. This is different from going to court where a judge makes the decisions which neither party may be content with.
Mediator’s role vs lawyer’s role
Unlike a lawyer in litigation, the mediator does not represent one side or the other. A mediator’s job does not involve giving legal advice. The mediator’s role is to try to bring the parties to agreement. By doing so, the mediator faces many challenges including the following:
- Before taking a case, conducting an assessment to determine if it is appropriate for mediation .
- Creating a neutral and safe environment — emotionally and psychologically, physically and legally — so that each party feels able to fully participate in the negotiation without fear, duress, or threats of reprisal, judgement or prejudice.
- Managing intense emotions in a way that allows each party to fully express their worries, concerns and goals, without disempowering or insulting the other.
- Identifying the contentious issues, and empowering the parties to go below the surface of those issues to help them gain some insight into the underlying reasons for their respective positions.
- Helping the parties to stay focused on the best interests of their children, and respecting the rights of children to have their views heard.
- Helping the parties better understand where the other is ‘coming from’ legally, emotionally and psychologically.
- Encouraging the parties to come up with their own solutions, and finding neutral ways to help them see options they may not be able to see themselves.
- Reinforcing the parties’ efforts to negotiate and keeping them at the table when the going gets tough.
- Reality-checking with each party, often in private, and discussing their alternative to settlement, which is often either doing nothing or lengthy and costly litigation.
- Managing all of this in a way that lets each party feel heard, respected, and treated equally by the mediator.
The mediator’s role is to try to find some common ground between the parties, and work with them to help them come together to a final settlement on all issues.
Cost of mediation vs litigation
Generally, the parties split the cost of the mediation 50-50. That means that both parties are splitting the cost of one professional. That is considerably less expensive than each party paying for his or her own lawyer. As well, the mediation process is generally outside the realm of the courtroom. Going to court is very expensive and usually involves:
- Many meetings with your lawyer,
- Getting your story and position down in affidavit form,
- Reviewing and putting together disclosure materials such as financial documents, letters and correspondence from each party and from third parties,
- Drafting the originating process, application or statement of claim,
- Research for the relevant legal issues,
- Drafting, serving and filing information statements for the judge in addition to the pleadings,
- All attendance time at court, including waiting time, which could be hours, and
- All court filing fees, where applicable.
In litigation, each party pays his or her respective lawyer for all these procedures. Obviously, this is much more costly than both parties paying for one mediator.
Family mediation vs litigation
In family mediation cases, the Ontario government pays for the mediation on the day the parties are in court. In addition, for mediation of such cases outside the court, mediation fees are government-subsidized and are based on each party’s income and number of dependants. These fees are much lower, usually under $5,000, than lawyer’s fees to go to court.
Do I still need a lawyer if I mediate?
Even if the parties decide to mediate, each should continue to have his or her own lawyer. The lawyers will provide ongoing independent legal advice to ensure that each party is aware of their respective rights and responsibilities along the way. As well, both parties must be aware of the legal consequences of any agreement reached, and each of the lawyers will review the agreement and discuss it with the relevant party before signing. It is not the mediator’s role to give legal advice and so each party must have his or her own lawyer for that purpose.
Mediation is a viable, affordable and effective alternative to litigation. If you think you and the other party are capable of reaching an agreement with the help of a third party professional, you should consider this option. Settling your differences through mediation can help you save time and money.
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