What is Mediation?
“Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses and waste of time” – Abraham Lincoln
Mediation is a process…
Parties in dispute choose a mediator, an impartial person, who helps them reach their mutually-acceptable settlement.
Mediation is an alternative…
It is available to resolve disputes in such diverse areas as family relationships, accidents, banking, finance and commerce, consumer contracts, insurance, leases, real estate and transportation.
Mediation is recommended…
Judges and lawyers suggest mediation as an alternative to litigation. In many cases, through mediation, the parties reach agreement, thus saving themselves emotional and financial costs.
Mediation is a first step…
It is one way of reaching a mutually acceptable settlement. If Agreement cannot be achieved, the parties can still take other action, such as arbitration or legal proceedings.
Mediation is faster…
The process can begin immediately, whereas disputes settled pursuant to court proceedings often take years.
Mediation is private…
You do not have to reveal your personal concerns in an open court of law.
Mediation costs less…
If both parties want to reach a settlement through mediation, the skill of the mediator can help them reach a solution in a short time.
Mediation can create good will…
A mutually acceptable solution to a dispute lets both parties be winners and respect each other.
What is Arbitration?
Arbitration is a process whereby parties in dispute refer their disagreement to a mutually acceptable, knowledgeable, independent third party – an arbitrator – agreeing in advance to be bound by the arbitrator’s decision. Some disputes, by their very nature, can only be settled by litigation.
The majority, however, can be settled by arbitration, with significant benefits to the parties involved and to society at large. The advantages include the following:
Arbitration is faster…
Disputes settled in court can often take many months or years. With arbitration, these same disputes can be settled in weeks.
Arbitration is more expert…
Disputes taken to court are settled by judges who, while unquestionably expert in law, may or may not have particular expertise in your field. By contrast, with arbitration, you and the party with whom you are in dispute choose your arbitrator on the basis of his or her expertise and experience in your field.
Arbitration is private…
Courts are open to the public, cases are reported in widely circulated forms, and information about your business and personal affairs becomes public knowledge – available to competitors and others you might not wish to have such information. Arbitration proceedings, however, are always conducted in private – and are only made public with the consent of all parties to the dispute.
Arbitration costs less…
Often times, arbitration is significantly less costly than litigation. It can make a difference of many thousands of dollars to the parties in dispute. The savings to Canadian taxpayers would be considerable if our overcrowded courts were relieved of the numerous disputes that can be settled more efficiently through arbitration.
Arbitration can maintain goodwill…
Arbitration, by its very nature, is less likely than litigation to result in ill-will between the parties involved. It increases the chances of reaching an agreement that will satisfy both parties and allow them to work together again in the future.
How the Different Processes Work
| How it Happens | Who is Involved | How does the process work | Outcome | |
|---|---|---|---|---|
| Negotiation | By agreement/ contract | 2 or more parties communicate with each other and make decisions | The parties determine the process | Contract is final and binding |
| Mediation | By agreement/ contract Court-ordered | A neutral third party acts as communicator and facilitator to help parties make their own decisions to resolve the dispute. | A neutral third party leads the parties through stages in private, caucus and together.1. Opening Statements 2. Defining the issues 3. Developing understanding of issues 4. Developing solution | Written or verbal agreement which morally or legally binds the parties |
| Arbitration | By agreement / contract By legislation Court-ordered | A neutral third party acts as decision-maker | By e-mail, fax and conference calls, the arbitrator leads the parties through stages:1. Parties structure proceedings and schedule 2. Submission of claims, preliminary matters, defence, answers, evidence, argument 3. In person hearing if requested 4. Cross examination 5. Summation. (Unless parties agree to a less formal process) | The arbitrator’s award is final and binding on the parties and enforceable by the courts |
| Litigation | Either party may initiate | Judge acts as decision-maker | Judge takes the parties through stages:1. Opening statements 2. Argument / evidence 3. Examination in chief 4. Cross examination 5. Summation | A decision by the Judge which is final and binding on the parties subject to the right of appeal. |