Alternate Dispute Resolution: Mediation
For more than 600 years, English, Canadian and American lawyers have used trials to resolve differences between parties. In criminal matters there is little alternative to a trial. However, in civil disputes where money is involved, lawyers have developed cheaper and quicker ways to resolve disputes. The number one way to resolve disputes now in the Canadian legal system is through mediation.
What exactly is a “mediation” and how does it work?
A mediation, as will be explained, allows a specially trained lawyer to attempt to get the parties to agree to a settlement with less expense, and less delay, than a trial would require.
Even if you mediate you still bring a lawsuit. There are distinct advantages to doing this so you can see what evidence the other side is relying on.
To settle any dispute one has to know exactly what documents the other side has. In Nova Scotia we find out what documents exist through the process of disclosure required under the Civil Procedure Rules. All Canadian jurisdictions have a similar mechanism to find out what documents the other side has. Those mechanisms require both parties to state their claim, what they are looking for and requires the other side to explain why they are not prepared to concede the claim in whole or in part.
Because the Nova Scotia Civil Procedure Rules are so broad we are permitted to discover eyewitnesses that were directly involved in a dispute so long as they can provide relevant information. This is a good thing because it gets to the bottom of a dispute rapidly.
In provinces such as New Brunswick, you are not allowed to discover peripheral eyewitnesses without leave of the Court, and it is the same in Ontario. The Nova Scotia Rules are based on the U.S. Federal Court Rules which are broad and this saves considerably in fees when it comes to mediation because after discovery you have most, if not all, of the answers. In provinces where the discovery rules are not as broad there are always arguments as to how the case is going to turn out because no one knows for sure what all the witnesses will say.
Once the exchange of documents is completed and sworn testimony is taken from both sides, the lawyers have a pretty good idea how the case is going to end up, if it were to go to trial. The problem with a trial is that the individual parties involved must pay huge amounts of money for their lawyers to prepare and huge amounts of money for their lawyers, experts and various other witnesses to attend the trial. The cost of doing a mediation is but a fraction for preparation and attendance, and the results are often more predictable.
Partly for that reason, in Nova Scotia only 2% of all cases that are brought to suit actually go to trial. Nova Scotia has one of the best records for avoiding trial in Canada and of course that pays huge dividends to clients. Just to put things in perspective, if you had an insurance trial that was two weeks in duration, the cost to a client is going to be at least $50,000 in additional legal fees. Compare that to say $5,000 or $7,000 to prepare a Brief and attend a mediation.
Not all lawyers are schooled in how to maximize the client’s position in a mediation scenario. Some lawyers have more experience than others and some have more training than others. Finally, some lawyers have more intuitive sense on how to cut a deal. When lawyers apply to law school they are not judged for these skills and talents, but simply for general intelligence and their analytical skills.
Therefore, as in all professions, not all lawyers are created equal. At our firm we put special emphasis on developing these skills and we have had good success for our clients, both from the plaintiff and the defence side, in resolving disputes for a fraction of the cost for our clients with a fraction of the time delay through mediation.
Lawyers have a responsibility to promote mediation in appropriate cases as part of their obligation to their client.
Who Chairs the mediation?
There are a number of lawyers in Nova Scotia who have studied to be mediators. They have to know how to reduce the expectations of both sides and bring everyone together in the same range of settlement. This is not always easy to do.
However, both sides submit a detailed Brief to the mediator beforehand and as an independent individual the mediator studies the differences of position and understands therefore what the variance in approach is. Then they try to bring those two parties to some kind of a satisfactory resolution. As many mediators will tell parties at the outset, all parties will go home “unhappy” when a case settles, which means both sides have succeeded in obtaining a reasonable and fair settlement but through a compromise in their own position.
Mediations work best for commercial litigation and where one party does a lot of litigation such as an insurance company or bank. They understand what the risks of litigation are and they have the resources to resolve the matter promptly if they think it is a fair settlement.
As time goes on more and more cases are going to mediation and fewer are actually going to trial. For the lawyers and clients, that has to be a good thing – a less expensive outcome with more certainty.
This information has been provided for general reference only. For advice on an actual matter, you should consult a lawyer. Connect with a member of our team today to schedule your free half hour consultation. To contact a member of our team call us at 902-469-9500 or 1-866-339-3400 or contact us online to make an appointment.