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MEDIATION
Mediation is a process by which parties who have a dispute
engage a neutral, called a mediator, to facilitate a resolution
to their problem. Although some mediations are mandatory,
arising from an agreement or a court ordered process as
is beginning to happen in family matters, but most are by
agreement between the disputing parties.
The mediator is a facilitator, not a decision maker. The
proceedings, usually lasting less than one day, are entirely
confidential and the parties normally agree in writing with
the mediator that no part of the proceedings can be introduced
as evidence in a court of law.
If the parties do come to an agreement, the mediator ordinarily
prepares a brief written summary of the results of the process
which is signed by all parties. This document, along with
the agreement to mediate, are admissible in court proceedings
as evidence of agreement between the parties.
Mediation is a powerful dispute resolution tool, particularly
useful when the parties have a continuing relationship that
will survive the solution to the dispute. They are commonly
used in labour and matrimonial disputes. The advantages
to mediation are: relatively low cost, privacy, and most
importantly, the fact that the parties themselves arrive
at their own solution creating a greater probability of
a "win-win" result. There are no obligations arising from
the mediation until or unless an agreement is reached: either
party or the mediator can terminate the proceedings at any
time and without giving any reason. This non-binding facility
can and should create a more relaxed atmosphere in which
the mediator and the parties discuss not only their respective
needs, but make a genuine effort to understand the interests
of the other side.
The typical mediation process is as follows:
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The mediator is selected either by agreement or
by reference from the British Columbia Arbitration
and Mediation Institute (BCAMI) or the British Columbia
International Commercial Arbitration Centre (BCICAC);
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The appointed mediator contacts the parties or their
counsel, usually by conference call, and sets the
time, place and the parameters of the mediation
agreement;
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The mediator prepares an agreement which is signed
by the mediator and the parties;
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At the commencement of the mediation, each party
sets out his or her issues and, perhaps, expected
resolution in an informal unstructured way;
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Each party questions the submission of the other
side, ideally with minimal intervention by legal
counsel;
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The mediator then meets individually with the respective
parties encouraging them to understand and react
to the other side's needs and interests;
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If the mediator considers that an agreement is reached,
the parties and the mediator then reconvene and
the agreement is committed to writing - ordinarily
one to two pages in length, setting out the obligations
in generalized, but binding form.
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The disadvantage
of mediation occurs when the parties are not both prepared
to settle their dispute through the mediation process or when
one side uses the process as a tactic to delay litigation
or arbitration. A third disadvantage can occur at the hands
of inexperienced mediators who are either excessively intrusive
or who are unable to maintain the necessary neutral stance
or to control the process.
Clayton is a past president of the British Columbia Arbitration
and Mediation Institute (BCAMI) and has conducted several
mediations in the shareholder dispute arena, generally where
valuation issues are relevant.
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