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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
There Are No Winners in Court
The legal system is not like a television show. There is no super TV lawyer 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 your resources completely? Can you afford to spend $30,000 or more on legal costs? How would that help your children? Or be in their "best interests?" You can be next. . . or you can be smart and mediate out of court.
The Mediator's Role
Mediators are impartial and have no decision-making powers.
What do mediators do?
- The mediator's roles include:
- meeting with the parties and helping them to define the issues in dispute
- managing the mediation process and keeping the discussion on track
- helping parties to communicate their interests clearly
- helping parties reach an agreement
- They can also provide a neutral and appropriate location for the mediation session.
The mediator's role is to guide the parties through a very effective problem solving process to resolve the issues between them. The mediator's role also includes:
- Creating a comfortable environment for the discussion;
- Helping the parties to define exactly what they are disputing;
- Making sure the discussion stays on track;
- Assisting the parties to identify and communicate their priorities and concerns; and
- Supporting the parties in reaching an agreement.
- Mediators do not take sides, make decisions or suggest solutions.
- The parties create and agree to their own solution.
- Nothing is imposed by the mediator.
Mediators are trained and experienced in dispute resolution.
- They are neutral facilitators who help the parties explore the problem, and find new options to resolve the dispute.
- The mediator does not judge who is right or wrong and does not give legal advice.
- Mediation does not have a set structure or methods, although some common elements exist:
- Clarification of the respective interests and objectives
- Conversion of respective subjective evaluations into more objective values
- Representation to the parties of a collection of possible solutions
- Translation of the result of discussions into a draft of agreement (perhaps in written form)
- Formalisation of the agreement.
What is mediation?
What mediators are not:
- 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.
A mediator is first and foremost a facilitator.
- The responsibility of a mediator is to facilitate communication between users during disputes.
- Mediators may not always follow the traditional model of mediation.
- In all cases they strive to achieve conciliation through negotiation.
- Mediators listen to both sides, they attempt to help each party recognize and value the other party's position.
- Mediators attempt to resolve differences in a mutually agreeable manner, and try to ensure meaningful discussions can take place.
It is a private, flexible and informal process where a mediator and disputing parties work together to find a solution that is acceptable to everyone.
The parties, not the mediator, make the decisions about the terms of their agreement.
The use of mediation is increasing as people become aware of how it can help settle disputes quickly and inexpensively.
- Mediators are not emissaries. It is not the job of mediators to pass messages between individuals who are not able to communicate. Mediators work to establish the trust and common ground to allow direct communication.
- Mediators are not private investigators. Mediators do not "work for you", nor will they work to build a case against someone. Mediators will examine the facts surrounding the dispute in an attempt to understand what each party is looking for and to determine what may help to resolve the dispute amicably.
- The communications that take place during mediation are not appropriate ammunition for an arbitration case, and mediation should not be used as a case building exercise for arbitration.
- Mediators are not psychologists or social workers. Mediators work with all parties as a neutral third party; they cannot and will not counsel or give advice to either party involved in the dispute.
- Mediators are not advocates. Mediators will not take sides in the dispute or promote one person's point of view or request over those of another person.
- Mediators are not security guards and will not serve as witnesses or complainants in incident reports.
- The contents of formal mediation are privileged.
Many lawyers wisely recommend mediation rather then litigation. Listen to them.
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.
"The hungry judges soon the sentence sign,
And wretches hang, that jury men may dine."
Alexander Pope 1688-1744
When you need a Mediator, Arbitrator or ADR Expert anywhere in Canada, ask CanLaw.