Why Mediate?

Dispute Resolution.

Starting with the proposition that all counsel and parties involved in litigation should explore the possibility of resolution of all disputes without trial throughout the litigation, why should they mediate disputes? There are a number of methods by which to attempt to resolve a dispute.  As counsel before mediation was common, I frequently used them all.  When mediation became popular, I continued to use other means of settling matters when I could while also adopting mediation as a valuable tool.  I still encourage parties to attempt resolution directly where possible. Mediation is not required in order to resolve all matters.  

Mediation is a very valuable process and tool for resolution.  In some jurisdictions, including Alberta, parties are required to participate in some form of dispute resolution process, mediation or JDR, before they can obtain a trial date.  This is not the best reason to mediate and I hope that most parties participate in mediation with a sincere desire to work toward settlement of the whole claim or some issues. 

Mediation provides a number of benefits that not all other methods of settlement give.  Scheduling a mediation gets parties to commit to expend time and energy on exploring resolution all at the same time, increasing the chance of achieving that resolution. The mediation process is flexible, allowing comfortable, respectful and full discussion of the facts and issues both directly with the other party and counsel and through the mediator.  Mediation is a chance to communicate your case clearly and forcefully directly to the other party and their counsel and to see their reactions and respond to their questions or challenges and to learn what is most important to them.  Communication occurs both with written briefs and in discussions during the mediation.  Few other settlement tools and processes allow you to communicate directly to the other party, unfiltered by counsel.  The value of this opportunity should not be underestimated. 

Mediation allows the parties to schedule for a mutually convenient date with a mediator of their choice, whose opinion and judgments they respect.  It affords a chance to get the perspective and assessment of the case from a trusted, objective third party, giving insight into how a trial court might see the case. In the mediation process there is a chance to discuss the issues and debate them with the mediator in a way that is not possible at trial with a judge.  At mediation parties can therefore fully test their case theories and evidence and identify weaknesses.  They can adjust their assessments and make informed decisions about settlement based on what they hear.  They may be able to  address weaknesses before trial if settlement is not achieved.   

Mediation is also more comfortable for most parties being less formal than trial.  It is certainly shorter, more efficient and less stressful than trial. That it is less expensive is obvious.