The Mediation Guide

Navigate the faster, cheaper, kinder process

David R. Greig

• Publisher: Self-Counsel Press
• Year: 2021
• ISBN:
  9781770405202
• Topic: Jura
• Subtopic: Schlichtung, Verhandlung & Mediation in Rechtsangelegenheiten

Mediation is a private and voluntary process that can be undertaken by two or more parties in conflict. Mediation can be used by people or organizations to settle disputes in family law, estates cases, car accidents, EI claims, landlord/tenant affairs, small claims court, and more. When successful, it allows participants to avoid litigation, or other alternative dispute resolution means such as arbitration.However, most books about the mediation process are for the mediators. This book is for participants, who — most of the time — don't know anything about mediation! The Mediation Guide will help readers understand the process in Canada, and teach them what they can do to help it run smoothly and efficiently.The Mediation Guide was written by a lawyer and mediator with years of experience hosting mediation sessions. The process, skills, and techniques he explains enable participants to feel comfortable knowing what to expect when going into mediation, so they can find their own solutions to issues, and reach successful resolutions and settlements.

Chapter 1

About Mediation and Alternative Dispute Resolution (ADR)

1. The Origins of Mediation

This is not a history book, and I am not a historian. However, if you are going to invest some serious time, energy, and money into a process such as this (particularly if it might govern some important issues, for the rest of your life), you should probably know something about its origins.

Mediation is not a clever idea dreamed up by lawyers and psychologists in the 1960s. It is, in fact, an ancient process, which dates back about 4,000 years.

The true genesis of mediation has been the subject of great scholarly debate. It seems generally agreed, however, that some of the earliest evidence of mediation (in a form similar to that which we now know) dates back to the Mari Kingdom, about 2000 BCE. There, in what is now Syria, various manners of domestic disputes were settled through a mediation-type process, involving an impartial third party or “go-between,” who brought the parties together in a voluntary and private process to find a binding and consensual resolve. The process was most probably used to resolve property disputes and other family squabbles.

A similar historical pattern is seen in Egyptian, Greek, and Indian culture after 2000 BCE.

The process was also known to have been a part of other cultures throughout Asia, Hawaii, and other Polynesian countries. In the Americas, the record is clear that mediative processes were in use by 1790 (on matters relating to treasury issues, and property disputes). In fact, some early legislation was enacted in several jurisdictions in America in the early nineteenth century, dealing with arbitration and mediation principles.

Near the end of the Russo-Japanese war (1904–1905) it was clear that the Japanese would be in a position to force Russia to abandon its expansionist policy in Asia. The specifics of the Peace Treaty that ended the conflict were very much in dispute, however, and outside help was sought. In 1906, Theodore (“Teddy”) Roosevelt stepped in, and successfully used a mediation style model of dispute resolution to broker a peace deal. It was an effort that won him the Nobel Peace Prize.

Family mediation really took shape and form after 1950 in America, probably with a marked increase in divorce rates. Within a decade, a similar pattern emerged in Canada. At about the same time, litigants seem to have demonstrated interest in the use of mediation for personal injury matters, labour and employment matters, estate disputes, and even construction law matters. By the 1970s, as mediation use grew as a viable alternative to traditional litigation, formal training for mediators became available throughout North America, and competency and proficiency standards began to be developed. Mediation was in vogue, and new theories, practice models, and research and scholarly writing on the topic flourished. The growth of mediation continues unabated today.

2. What Is Mediation and How Is It Different from Other Alternative Dispute Resolution Methods?

Quite often, people refer to mediation as “alternative dispute resolution” or (erroneously) as arbitration. These terms need clarification.

Generally speaking, any process in which two or more parties seek a settlement of a material disagreement will involve some effort at dispute resolution. That phrase is the parent of all formal and informal systems which seek to solve disagreement. Dispute resolution, as a concept, includes and encompasses negotiation, mediation, arbitration, and litigation. We say “alternative” when we’re discussing methods alternative to litigation (court).

In arbitration, the proceeding is voluntary, private, funded by the parties, and arranged at their convenience. However, the arbitrator’s purpose is to hear the parties and decide the case, imposing an arbitral determination (sometimes called a decision or award). That decision is binding on the parties as it would be if a judge had made it. In many ways it is similar to litigation, except the parties hire the arbitrator and have the case heard in private.

Mediation is perhaps best described as a private and voluntary process, funded by the parties, in which two or more parties in conflict meet together, with an impartial third party, to find a resolution. Mediation —

• is private (and almost always attended only by the parties and the mediator);

• is funded by the parties;

• is convened at any practical place convenient to the parties;

• can be convened, often on short notice, at any time convenient to the parties;

• involves the use of a mediator who typically has professional training and identifiable credentials; and

• never involves a recording or transcript of the process, but if a settlement is reached, typically results in a written recording of the terms, sometimes called “Minutes of Settlement.”

Obviously, not every dispute is material, and not every couple or group with a dispute genuinely wishes or expects a resolve. For instance, when you and your spouse disagree over some minor matter regarding household chores, it’s likely not the kind of dispute that calls for intervention — at least not in any formal way. You may simply agree to disagree, and move on to something more important. Often, those kinds of disputes just fade into the obscurity of yesterday. Or, you may concede, and carry on. See Chapter 5 about “surrender” — an often overlooked tactic that has a proper place in the world.

In other kinds of disputes, the parties may not be engaged in dispute resolution at all, because neither party genuinely wants a resolution; sometimes the fight itself takes on a life of its own. Stories of these kinds of disputes abound, but some memorable examples might include the Hatfield and McCoy feud, and the fictional story of the Jarndyce v. Jarndyce estate litigation in Dickens’ Bleak House:

“Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in the course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; along processions of Chancellors has come in and gone out but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless … ”

Of course, in a review of the history of many religious disputes, we see the same generations-long argument over various points, always of intense importance to the parties, but rarely capable of or leading to lasting resolution. Sometimes, the best that can be hoped for is a temporary and fragile “cease fire.” The underlying dispute never seems to end.

In family law, this too occurs with some frequency. I have noticed, for instance, that when a formerly loving relationship ends because one party has found a new lover, the stakes, anger, and hostility can often be heightened. In such circumstances, the spurned spouse may wish to engage in a continuing fight because “some attention” is better than being forgotten — at least one can be remembered by war. It may not make sense to an outsider, but it’s a real feature of some prolonged disputes.

In such circumstances, no book about mediation is likely to help. Professional intervention, the poultice of time, or other resources will better serve. It is very difficult to negotiate constructively with a party who takes pleasure from engaging in disagreement. It is for that reason that there are some disputes which are simply not realistically resolvable by mediation (or negotiation of any type).

Fortunately, it has been my experience that most disputes are amenable to dispute resolution, and particularly mediation. That is so, I believe, because most parties in conflict understand, or can be shown, that peace is best. Even a “so-so” settlement is better than a great war.

Chapter 2

Why Is Mediation Better?

The scientific evidence (or statistics) about the successes of mediation is limited. While one can easily find some scholarly sociological work which attempts to track the topic, most of the data available is of minimal interest to parties who are considering mediation processes, and there isn’t much of it.

There are likely several reasons for that lack of objective scientific evidence on the topic:

First, mediators and participants are engaged in a private process. That’s one of the key selling features of mediation, and often, it’s the central reason why couples and litigants come to it. Mediation keeps couples out of court, and takes litigants away from the adversarial process. Remember that in North America, almost all courts are open to the public. Families, injured folks, and warring beneficiaries often don’t want looky-loos listening in to their testimony from the back of the courtroom. They don’t want to worry that a Grade 12 class, on tour of the courthouse, might end up hearing cross-examination on some intimately private matter. And, many in dispute do not choose to have their family history and finances described in the press or on the internet.

A mediated settlement is private — court is not. That means that the data about mediations is also, almost invariably, private.

Second, even if mediators and participants could be encouraged to disclose their experiences and outcomes, the reporting of results is bound, by design, to be voluntary, and wholly subjective. In the result, the qualitative analysis of result might well be suspect.

We see how well this works when the internet hosts rankings of restaurants. A popular spot in your neighbourhood will often list postings ranging from “outstanding” to “disgusting.” A few guests may have had wonderful experiences, but an equal number vow to never return. Do complainers post more often than those guests who were pleased? Who can say?

So, instead of lamenting the shortage of sound statistical data about why mediation is “good” and why it “works,” it may be that we’re left with only anecdotal or experiential data, from those who have done mediation work. That must surely be the source of the best information. That’s doubly so, I believe, because it’s likely that only a small fraction of the population have ever been involved in a lawsuit or mediation, and of that group, even a smaller fraction have been involved in both. Of those who have participated in both litigation and mediation, it’s likely that their experience (and what they’d say about it) is highly subjective, and unscientific, even if there was a reasonably good sample group.

In the end, then, this chapter is really nothing more than my argument about why I believe that mediation works, and why it’s better. It’s based on my experience working as a lawyer for about 35 years, and working as counsel in mediations for more than 20 years, and working as a mediator for several years. I don’t know everything about the topic, but I do know that in my first year as a mediator, more than 90 percent of the cases I worked on were settled in one day or less. Those cases did not settle because I am gifted, but because the parties were properly prepared, motivated, and committed. As a result, they all avoided court. So, what I can say, with some confidence, is that after several thousand divorces and hundreds of mediations:

1. Mediation is faster: Most mediations start with an intake process, and perhaps a pre-mediation discussion, or “screening” for the candidates. That entire process might consume one to four hours, in total. Then, there’s the mediation itself (which is “game day”). That usually takes one day. I’ve been involved in some mediations which have gone on for two to three days, but those are exceptional.

So, from start to finish, the total lifespan of a mediation is generally, in my experience, a few days to five weeks, all inclusive. That’s it.

In a lawsuit, it’s common for a couple of months to pass between the first meetings with counsel, and the commencement of the proceedings. Then, the pre-trial motions and discovery often continue over the course of several months to a year. Sometime during that time, trial dates are booked — usually six months to two years down the road. By the time you have your day in court, and the judge has reached a decision, it’s commonly two to four years after the separation, the car crash, the reading of the contested will, or the construction project. That’s normal. On that basis alone, mediation is far superior in terms of total elapsed time.

2. Mediation is cheaper: More than 90 percent of the mediations in which I’m engaged result in an expense (to the parties) of less than ...