What is mediation?
Most lawsuits never go to trial. Instead, lawyers on both sides usually gather evidence and then negotiate a settlement out of court. Mediation is a formal procedure designed to help that out-of-court process along. In a mediation, as with other forms of negotiation outside a courtroom, lawyers from both sides will try to hammer out a deal that their clients can live with. The unique aspect of mediation is the involvement of a mediator, a neutral person who is often, but doesn’t have to be, a lawyer. Their role is to facilitate the discussions and ensure that when the parties get into areas of major disagreement, they keep talking to each other.
Who, where, when, how & how much
Who – Normally the plaintiff and his/her lawyer, and the defendant (or key person from the insurance company if the case is being defended by an insurer) and their lawyer, attend the mediation. Other persons (e.g. the plaintiff’s spouse or close friend) can attend for some or all of the mediation. Sometimes, independent witnesses may be put on standby to give useful information in the event their evidence is key to the issues in dispute.
Where – The meeting place is a neutral location agreed to by both sides, often a boardroom with a single table and chairs. If the parties have difficulty dealing with each other, or when one side needs to discuss matters just among its members, a mediator will offer a separate room and may act as a go-between with various offers and issues/information.
When – Mediations can be held at any time, but it makes most sense to hold them when the parties are ready to settle – e.g. they have collected all of the evidence they need to assess both liability and damages. But mediations can also be tailored to settle only one aspect of the lawsuit, such as liability, with the rest of the suit to be settled or litigated separately.
In 1997, in some areas of B.C. and with some types of claims, new Regulations allowed parties to force the other side to participate in a mediation (though not to settle), by serving them with a Notice to Mediate. In 2001, this right to compel a mediation was expanded to all of B.C.
Once a mediation is scheduled, it will be on a specified date and usually (in personal injury claims, at least) last half a day to a whole day.
How – At the beginning of the mediation, the mediator will explain the “rules” of mediation:
- everything that is discussed is to be kept confidential. This is to encourage the parties to be frank and open with each other in their discussions;
- the mediator cannot be called at trial as a witness to anything that took place, or was disclosed, in the mediation;
- the mediator is not to act as a judge or lawyer and can neither force a party to take any particular position, nor give legal advice;
- if the mediation does not end up in a settlement, the parties can proceed to trial.
How much – The costs of mediation range from approximately $2,500 to $5,000, depending on the amount of time spent in the mediation, the number of parties, and other factors. If the mediation results in a settlement, it is common to have the defendant pay the full cost of the mediation as a term of the settlement.
Pros and cons of mediation
- can force each side to organize and prepare their cases earlier, exposing weaknesses that need additional attention
- can deflate unrealistic expectations by bringing out each side’s strengths and weaknesses
- can save the time and expense of going to trial
- can avoid potential devastation for the party or person with the greatest amount to lose at trial should a trial judge or jury prove unsympathetic
- can encourage settlements because of the time, money, and effort each side must invest to arrive prepared; and the emotional pressure to “hammer out a deal” as the mediation day wears on
- working out a settlement may give more feelings of empowerment than the formal dictates of a trial would provide
- can overwhelm, intimidate, or demoralize vulnerable plaintiffs if not carefully handled
- may be a waste of time and money if one party is not prepared to negotiate in good faith
- can pressure a person to make a bad settlement, especially if that person’s lawyer isn’t fully prepared with all facts, arguments, and a “bottom line” from which he/she will not renege without very good reason
- because compromise is at the heart of a successful mediation, the plaintiff inevitably comes down from his/her starting offer, and the defence inevitably goes up from their starting offer. The ultimate settlement being so far from an “ideal” result can leave both sides walking away unhappy
- may be an unnecessary expense, since many cases can be settled simply with phone calls, letters, or informal meetings.
Courts have been bogged down by the numbers of cases asking to be heard, so alternative methods of dispute resolution have increased. For an increasing number of legislators, lawyers, insurers, and plaintiffs, mediation obviously fits the bill.
Expect to see its use continue to grow.
Excerpt from “ACCESS TO JUSTICE: Legal issues for the injured and people with disabilities,” written and produced by Faith Hayman, Barrister and Solicitor.
This is for informational purposes only and its contents are not intended nor should be considered to be legal advice.
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