When To Consider Mediation?
Many things can happen along the way to a trial. Often a settlement is one of them. As a trial lawyer I recognize that having your day in court comes at a very high price. Lawyers’ fees are only part of that price. There is delay – civil cases take years to get to trial. Overbooked courts often do not have enough judges on the day of your trial so you may get bumped to another date. That date will probably be at least a year later depending on the schedules of the court, the parties and their lawyers. There is complexity – trials are conducted according to a lengthy set of rules of practice and evidence refined by years of case law precedent. There is also a lack of control – in a trial the judge (or jury) makes the decision; not the parties.
Settlements can be negotiated by the parties or their lawyers. Mediation is a type of negotiation in which a neutral third party, the mediator, helps the parties to reach a settlement. Here is a breakdown of a mediation in a civil (non-criminal, non-family) dispute:
When to consider mediation:
A mediation can be held any time after the parties recognize that they have a dispute. In litigation most mediations are held after the examinations for discovery and after all necessary documents have been disclosed. That way the parties come to the mediation with all of the necessary information.
Where mediation takes place?
The mediation will be held in a boardroom that is big enough for all the parties attending and have smaller, breakout rooms, for the parties to meet separately with their lawyers and/or the mediator. You do not need to attend at the courthouse.
Who attends mediation?
The parties to the dispute attend and bring their lawyers if they are represented. Witnesses do not usually attend. Many mediators are lawyers but the mediator can be anyone the parties agree can mediate their dispute. Mediators are not licensed in BC but there is an organization of accredited mediators called Mediate BC. You can find a roster of mediators at http://www.mediatebc.com/ . Two members of our firm are on the roster – Gillian M. Dougans and David H. Pihl, Q.C. Mediators are neutral and they do not make decisions or give legal advice.
What happens at the mediation?
Before the parties get to the mediation the mediator will have spoken to them, described the process and checked for conflicts of interest. The parties should exchange a written description of the issues to be mediated and the desired outcome. At the start of the mediation session the mediator will have the parties sign an Agreement to Mediate which typically covers the following:
- Confidentiality – mediation sessions are confidential. If persons not attending the mediation need to be informed of what went on the parties should discuss and agree on how information will be handled outside the mediation.
- Privilege – information disclosed in a mediation is privileged and cannot be repeated in court. Mediators cannot be subpoenaed as witnesses in court to testify as to what the parties said in mediation. This part of a larger body of privilege that protects all settlement negotiations in order to encourage the parties to thoroughly explore settlement opportunities before a trial. Let’s say you were suing someone to recover $100,000 and in a mediation you offered to settle for $50,000 but you weren’t able to settle and you had to go to trial. At trial you can still sue for the whole $100,000 and the other party cannot tell the court that in mediation you offered to settle for only $50,000.
- Disclosure – the mediator will encourage both parties to disclose all relevant evidence and documents. The mediator does not have any power to force disclosure.
- Termination – any party, including the mediator, can terminate the mediation. A mediator will terminate a mediation if the discussions becomes unproductive or even harmful to the parties.
- Authority – the mediator will confirm that the parties attending have authority to resolve the dispute.
- Intent – the mediator will confirm that the mediation process is voluntary and that the parties need only agree to use their best efforts to consider options to resolve the dispute.
- Fees – the agreement will confirm the payment of the cost of the mediation.
How much does a mediator cost?
Mediators’, fees are similar to lawyers’ fees. You can expect to pay rates of $200 – $400 per hour plus disbursements such as boardroom rental. Some mediators charge flat fees, minimum fees and travel expenses. In each case you should ask up front. Unless the parties decide otherwise at the mediation the cost of the mediation will be shared equally by the parties.
At the beginning of the mediation each party will make an opening statement of the issues as they see them. Next the parties will ask questions and discuss the evidence. In the negotiation phase the parties will exchange offers. This is where the breakout room gets used. The parties will meet separately, come up with an offer, and then get back together to make the offer. The mediator can meet with the parties separately to discuss strategies to bring the parties closer to settlement. A mediator can ask the parties to examine the risk in their case and the consequences of not settling. She can urge disclosure of information. Sometimes the parties have the mediator take offers back and forth. Once a settlement is reached the mediator will draw up minutes of settlement for both parties to sign. Any settlement should include the terms of payment and the consequences of non-payment.
The Mediate BC website above contains useful information for anyone considering the mediation process.
The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.