Is Mediation Right For You?
Mediation is the process of dispute resolution in which parties to a conflict agree to refer their matter to a trained, impartial and neutral third party. The neutral party assists in the clients reaching a mutually agreeable resolution by facilitating the mediation process, promoting respect of the process and ensuring there is effective communication.
Mediation can either be lawyer assisted or attended only by the parties to the dispute. In the event mediation is successful, parties enter into a legal contract outlining the terms of their settlement. If the mediation does not result in an agreement, either party is free to pursue other actions.
Advantages of Mediation:
The advantageous of mediation are as follows:
- Creativity of the Result – In litigation or arbitration, the Justice or Arbitrator is required by law to apply the law and will impose a resolution to a dispute in accordance with the law. Parties in a mediation will have the opportunity to create a resolution that does not fit within the confines of the law, thereby opening up potential solutions that would not be possible in a litigation model.
- Efficiency – Mediation can be commenced within a relatively short period of time. It’s possible for resolution to be achieved between one and five sessions, depending on the complexity of the situation.
- Cost – Mediation can be very cost effective, this is especially true in comparison to litigation or arbitration proceedings.
- Privacy – The mediation process is confidential and held in private thereby avoiding exposure of the conflict, and any related information through the formalized filings that are required in the public court system.
- Informality – The setting for mediation is relaxed and informal to allow for open communication and foster non-confrontational problem solving.
- Control of the Result – In mediation there is no final resolution until both parties agree to an outcome. As such, no third-party justice or arbitrator can impose a resolution on you in the mediation process.
- Compliance with Requirements to Attend an ADR – All litigants are required by the Alberta Rules of Court to attempt settlement through some form of formal alternate dispute resolution prior to scheduling a trial. A mediation session satisfies this requirement.
Limitations to Mediation:
Although mediation has its advantages, there are also limitations, including the following:
- Voluntary – Mediation is a process that required both parties be committed to using mediation to resolve the dispute that exists. If one party refuses to take part, it is not possible to continue with mediation.
- Enforcement – Unlike Court Orders and Arbitration Awards, mediated settlements are not automatically enforceable or legally binding. Upon reaching a solution the parties must convert their terms of settlement into a mechanism which can be enforced, such as a Contract or Court Order
- Control of Result – While this is an advantage of mediation, it can also be a disadvantage. Parties can proceed through the mediation process and never achieve a mutually agreeable resolution, meaning, the parties must commence resolution through other means.
Our senior divorce lawyers have extensive experience representing clients in mediation and mediation / arbitration as well as conducting mediation and acting as the independent third party mediator or mediator / arbitrator. Connect with us to learn more and set up an initial consultation today.