Area of Law: Alternative Dispute Resolution (ADR) - Arbitration and Mediation
Answer # 0520
What is mediation and when is it appropriate?Region: Ontario Answer # 0520
Mediation is the process of trying to solve disagreements between people or companies without going to court. It is a form of negotiation that is chaired by a neutral person, called the mediator. The mediator has no personal interest in the outcome of the mediation, and is there on the agreement of all the parties.
The mediator is a trained professional who has learned the skill of helping people who have a disagreement to listen to one another, to understand the disagreement from one another’s perspective and to help them work out solutions that are tailored to meet their needs.
The mediation can take place with or without the parties’ lawyers being present. Whether the parties’ lawyers will attend the mediation is a decision that can be made by the parties and their lawyers together.
If the parties are able to solve their disagreement with the assistance of the mediator, they can write up the agreement in the form of a contract with their lawyers.
When is mediation appropriate?
Certain court proceedings have mandatory referrals to mediation. In Ontario, all civil, case-managed actions, except family cases, are referred to mediation. Cases may be exempted only if the parties obtain a court order. More specifically, cases related to estates, trusts and substitute decisions are referred to mediation as well, unless there is a court order exempting them.
Court-ordered mediation fees are set by the government and include one-hour of preparation time and a three-hour mediation session. The fees vary depending on the number of parties and range from $600 to $825. Anything above this amount must be agreed to by both parties before the mediation session.
In cases where mediation is not mandated, mediation may still be appropriate when the people or the companies with the disagreement have decided that they want to try to reach an agreement without having a decision made for them by a court.
For example, the Ontario Commercial Mediation Act, 2010 was brought into force allowing parties settling a commercial dispute through mediation to register their settlement agreement with a court and have it treated like a court judgment for enforcement purposes. The Act also gives parties certainty about how to appoint mediators, the conduct of the mediation and confidentiality of the process.
Mediation is not appropriate when there is some reason for one of the parties not to settle. That may be the case where the disagreement is a test case on a subject that no court has decided. Mediation may not be appropriate where one of the parties has far greater resources that might result in the weaker party making a bad deal.
In family disputes, mediation is usually not recommended where there has been a history of domestic violence. However, if these people want mediation, attendance with their lawyers is a good idea.
That said, in the absence of any history of violence, mediation can be a far less expensive and quicker method of resolving family matters.
The three most common reasons why people choose to mediate instead of going to court are:
- The parties get to reach their own agreement, instead of allowing a judge to do so;
- The cost of mediating is far less than going to court; and
- Mediation can take place quickly, whereas going to trial could take years.
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