"Mediation and Other Stuff"
Dispute Resolution Services
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Welcome to "Mediation and Other Stuff", my monthly newsletter about alternative
dispute resolution from an Ontario perspective.
Why You Should Consider Mediation for
Conflicts and disputes are a part of everyday
business life. Although conflict is neutral, how it is dealt with is the
important issue from a business perspective. There are usually opportunities to resolve business
disputes in a positive way. Most disputes
faced by businesses are good candidates for alternative dispute resolution and
especially mediation. There are significant advantages in choosing mediation
over litigation or arbitration including:
- Control the outcome: You make the decision. The settlement, if any, will be
decided by the parties, not imposed on them by a judge or arbitrator. This
greatly reduces the fear that is likely to be present when the dispute is large
enough to threaten the solvency of the business or its owners. It also allows for
commercially reasonable settlements outside of the range which might be imposed
by a judge or an arbitrator.
- Control the process: The parties select the mediator and decide which issues
will be addressed, when sessions will be scheduled and how fees will be
apportioned. In short, you design the
- Save costs: In mediation, business lawyers act in a consultative or coaching
role, with the business owner or executives participating directly in the
mediation and assuming the important decision-making role.
- Deal with the real issues: Parties can discuss the true problems and issues in
dispute, including personalities, rather than arguing about each side's best
legal points. The result is that a more business focused, sustainable solution
- Discuss technical issues: Issues which may be too complex or technical for a
judge to grasp in the rushed atmosphere of a courtroom can be handled in
- Speed: Mediation can be scheduled and concluded as quickly as the parties need.
- Confidentiality: Mediation avoids public exposure of business mistakes,
internal problems and trade secrets. Because of many sensitive issues, a local
or national company has an important interest in preserving its reputation and
goodwill. Sometimes the negative costs of going public with a dispute can be
- Preserve relationships: Mediation can allow the relationship between disputing
businesses to outlast the dispute. The very process of arriving at a consensus
decision can be the foundation for the parties to continue to do business
together. Going to court destroys relationships.
- Plan for the future: Parties can devise a plan for a future working relationship
rather than limit discussion only to the dispute at hand.
- Satisfaction with the process: Mediation has an 80%+ settlement rate and
participants are generally much more satisfied with the process especially
compared to other forms of dispute resolution. Satisfied clients tend to refer new clients to their lawyers.
Topic of the Month: Med-Arb
Med-Arb is one the most common of the so
called "hybrid" ADR processes in which the
same neutral can act first as a mediator and, if settlement cannot be reached,
as an arbitrator. The use of Med-Arb as an ADR process has been approved by the
courts in Ontario in Marchese v. Marchese,(2007),
219 O.A.C. 257 (C.A.), where the Court of Appeal for Ontario held that an
agreement between parties to submit to Med-Arb was enforceable despite a
provision in the province's domestic arbitration statute that prohibits
arbitrators from conducting any part of an arbitration as a mediation.
Critics of this process believe that
mediators may learn facts concerning a party that they would not learn during the
arbitration, and that those facts could bias the neutral serving as an
Before entering into the process, it is
vitally important that the parties understand the potential risks of agreeing
to the mediator continuing as the arbitrator and that the parties acknowledge
and waive any potential issues in writing.
Med-Arb can be appropriate in very specific
situations involving sophisticated parties but it should not be generally used
as boilerplate in a pre-dispute ADR agreement.
If you have any questions or comments, please contact me.
Colm Brannigan, M.A., LL.B., LL.M. (ADR), C.Med., IMI Cert., Med., ADRIO Cert. Arb.
Mediate Better Solutions