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Mediation,  Arbitration & ADR

Lay Person's Guide to the Mediation Process on CanLaw

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Before you wade into the legal world, know this. . .

THERE ARE NO WINNERS IN COURT

MEDIATION

 

Mediation is a process provided by a neutral third party to assist two or more parties to resolve their dispute.

 

Parties to a mediation meet privately with the mediator to resolve their dispute on their own terms, rather than a judge or arbitrator making a decision after hearing evidence.

 

How Can Mediation Help?

 

If you are undergoing disputes or conflicts, mediation may be the answer.

 

Mediation can be used whether or not the parties have already started another process such as a court action.

 

The Benefits of Mediation:

 

Usually mediation saves you money compared to going to court.

Mediation is usually a faster process for resolving conflict than court action.

You participate in the resolution of your dispute.

Your relationship with the other party is preserved, for example as customer, supplier, business associate, parent or spouse.

You can keep the situation private.

THE MEDIATION PROCESS

 

The mediator will help you to resolve your problem so that you are the decision-maker.

 

The role of the mediator includes:*

 

reducing the obstacles to communication

maximizing the exploration of alternatives

addressing the needs of those involved or affected

The mediator assists the parties in a conflict resolution process which focuses on the needs and interests of the participants, fairness, privacy, self-determination and the best interests of both parties.*

 

Where there are legal disputes, parties to mediation are strongly advised to obtain independent legal counsel, preferably before mediation commences and in any event before a final agreement is reached. Mediators do not provide legal advice or professional opinions but may provide general information for the parties.*

 

A mediator tries to ensure

that the participants reach

agreement freely, voluntarily,

without undue influence,

and on the basis

of informed consent.*

 

* From the definition of "mediation"

Ontario Association For Family Mediation

 

"Before you seek revenge, first dig two graves"

Chinese proverb

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 Use our FREE Mediator Referral Service

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CAVEAT: Be certain you check for statutory limitation periods and comply with them before you set up a mediation schedule. The only person who can advise on limitation periods for any action you may be contemplating is your lawyer. If you miss filing an action within the required time limits, you will lose all rights to sue. CanLaw is not offering legal advice.

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 MEDIATE, DON'T LITIGATE: Suing never pays. It's very easy to start a lawsuit over some real or imagined wrong. A customer doesn't pay, your greedy wife is demanding more and more in your very own divorce from hell, the car you bought is a lemon. Right or wrong, suing will cost you many times more than you can ever hope to recover in time, money and aggravation.

The average lawsuit in Canada costs about $40,000: You can hire a lawyer and start a lawsuit. It will cost you thousands or tens of thousands of dollars, take years to get to trial and then in all probability you and the other party will settle on the court house steps. About 90% of all law suits are settled before trial. Part of the reason is that after all that time, both parties are fed up, but probably no longer angry or emotional and just want the whole mess to go away.

 

The average lawsuit in Canada takes about 3 years: Law suits currently take about three years to get to trial. Small Claims Court law suits will take at least six months to a year to get a trial . Then there is the possibility of appeals and you still have to collect if you win. Collecting a judgement can take many more years, but if the creditor is determined not to pay, you will never see a cent. Is this a smart way to spend your time and money?

 

Lawsuits are for losers: Even if you are completely right, you can't count on winning in court. Judges are capricious, arbitrary and moody. The lawyers on the other side can motion you to death and run up costs. Witnesses disappear or change their mind. Half of all the lawyers in all the lawsuits lose. Is the risk worth the price?

 

Even when you win, you still can lose: OK, you go through the years of litigation, pay thousands of dollars in costs, you finally get to trial and miracle of miracles, the judge says you win and awards you everything you asked for and substantial costs. Great! Now try and collect. The courts will not help you. Your lawyer can't do much. If the other party is determined not to pay, you will never see a nickel. Is all this nonsense worth it?

 

Be smart! Swallow your pride, mediate: Instead of paying thousands of wasted dollars to sue someone, pocket the money that you will save by mediating or buy yourself a new car or take the vacation of a lifetime.

 

Want to avoid all this and resolve your problem intelligently and efficiently? The answer is simple. If you have a problem which is heading towards a lawsuit, consider mediation.

 

CanLaw's FREE Mediator Referral Service will help you find a mediator who can arrange mediation between you and your adversary CanLaw's Mediator Referral Service can now help you find the right mediator for your problem. That means a mediator acceptable to both sides who will work with both of you to try and reach an out of court settlement you can live with. Be smart. Mediate, don't litigate.

 

How? Mediators will contact both parties or their representatives and present the case for mediation. Since they are neutral and uninvolved, usually both sides will agree to talk with them. Mediators will attempt to convince the parties to calm down and without obligation, agree to mediate as an alternative to litigation. This does not mean that the parties must surrender their right to sue. If mediation fails in the end, either party could still proceed to court, but that is usually a very foolish move.

 

CanLaw has compiled a national database of over 2000 expert, experienced professional mediators. All are accredited and all are fully qualified in their fields. Once both parties have agreed to try mediation, CanLaw's FREE Mediator Referral Service will help you locate the right mediator. Both parties must agree on the choice of mediator. Normally you should present the other party with a list of three suitable mediators from which to choose.

 

MEDIATION IS NOT BINDING ON EITHER PARTY. A mediator cannot and will not impose a binding settlement on you against your will. Mediation is designed to reach a voluntary settlement through discussion and negotiation. You have nothing to lose and a great deal to gain if facing a lawsuit. Disclosures in mediation will not reach the court if the matter goes to trial unless the parties agree.

 

Even if you do not fully resolve a dispute through mediation, you will at least settle some of the issues and probably get to the core of the dispute to be settled if the matter has to go to court. However, mediation usually finds a way to finally resolve the dispute to the satisfaction of all concerned. It is efficient and will save you a great deal of time and money.

 

 

 

 

What is mediation? Mediation is a process in which the parties agree to appoint a third-party neutral to assist them in attempting to reach a voluntary settlement.   The neutral does not make a decision  The parties may terminate the process at any time.   It is confidential and without prejudice.   The parties are encouraged to seek independent legal advice  Where a voluntary settlement is achieved, it only becomes binding when the parties have concluded a settlement agreement.

 

 

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CANLAW FREE MEDIATOR REFERRAL SERVICEGet Mediators, Arbitrators or ADR experts Bidding for Your BusinessPlease fill in the form here to tell us what you want and the type of case you have.Many lawyers wisely recommend mediation rather then litigation. Listen to them

"The hungry judges soon the sentence sign,And wretches hang that jury men may dine."

Alexander Pope 1688-1744

Before you wade into the legal world, know this. . .THERE ARE NO WINNERS IN COURT The legal system is not like a television show.  There is no Perry Mason rushing to the rescue at the climax. Getting involved in the courts is a lousy, destructive, enervating, expensive, frustrating, and time wasting nightmare that will last for years. Do you know, for example, that a prolonged family court battle often will wipe out a father's resources completely? How would that help your children? Or be in their "best interests?" The vast majority of fathers have been denied justice in family court for many, many years now in Canada. You can be next. . . or you can be smart and mediate out of court.

 

No, you probably do NOT know, nor understand, your rights despite what you think. Ask your lawyer to explain them and listen very carefully. Learn what your rights really are and how they can be and often are limited.

 

Understand that "Justice" is not necessarily based on the truth.

"Justice" as practiced in our courts is based on the law and frequently neither fairness, nor our concept of right and wrong,  has anything to do with court decisions. That is why a Karla Holmolka can get away with murder, while a Donald Marshall, a David Milgard or a Susan Nelles have their lives destroyed.  Justice is only designed to protect property and keep order in the most expedient manner possible.