Process

Mediation

A popular way to resolve everything from multi-billion dollar business disputes, to everyday neighbourhood arguments, is mediation. An outside and neutral coach assists both parties to work past the problem and provide a conclusion that is agreeable. You retain control of the agreement as it is up to you to reach the solution. The mediator will not choose for the parties but may draw up the agreed upon solution.  Throughout mediation, personal considerations will be taken into account if desired. There can even be an emphasis on building and supporting a working relationship between the feuding parties.

Mediation is much quicker and more painless than dealing with court. Mediation can be used in earlier stages of a dispute, before legal costs become overwhelming and both parties feel dug into their positions. It will always be more cost-effective to mediate rather than taking the issue to court.

Many outcomes reached via mediation would not occur in a courtroom. For example, a court may only interpret what a contract means literally, and cannot assist in renegotiating. In mediation, commercial considerations can be provided, ending up with a more amiable solution for all involved.

Unless the courts/ tribunals order you to try mediation, the process is typically voluntary. If you select to mediate and an agreement is not reached, you as still able to go to court.

These stages are usually involved in mediations:

Initiate a Mediation

  • The parties file a Request to Mediate to begin the process.

Mediator Selection

  • Once the parties begin the mediation process, they learn how to select an arbitrator.

Mediation Sessions

  • The parties will learn what takes place at a mediation session.

Settlement

  • A settlement occurs if the parties resolve their dispute.

Impasse

  • Impasse occurs if the parties cannot resolve their dispute.

The Role of the Mediator

The mediator will ask the parties to:

  • Send a short written statement outlining how they consider the dispute has arisen; their view of the argument and what steps have been taken in attempting to resolve the disagreement.
  • Define for themselves the subject matter of the mediation.
  • Determine their own objectives, which will include a maximum or minimum requirement.
  • List the various facts that are helpful to their case and those likely to be raised by the other party.
  • Provide the issues upon which the parties disagree.
  • Each party should evaluate their own situation in respect of each issue and determine the tactics for each.
  • Consider the needs of the other party. There is little point in pursuing something that the other party cannot provide.
  • Contemplate their strategies for the mediation.
  • The mediator facilitates agreement between the parties by suggestion, advice, persuasion, or any other means available to bring the parties together.

The mediator, who cannot enforce a solution, will refuse to begin mediation if they believe the substance of the argument is not suitable for mediation. The can deny request to continue when they think the parties will be unable to come to an agreement, or are not genuinely trying to reach a settlement.

The mediator can be removed by the parties at any time if they are displeased with the way in which they are conducting the mediation.

The mediator must endeavour to create a “will to settle”.

Arbitration

Arbitrations serves as an alternative form of problem resolution outside of the courtroom to retrieve a decision that legally binds the parties. Using the arbitration process, both parties choose an outside expert to act as a judge. The arbitrator is a qualified professional with legal and technical background on the matter at hand. This method is often used for large commercial dispute, building and construction contracts, or employment matters.

The arbitrator usually hears evidence at an office hearing, rather than a courtroom. The process is conducted in accordance to any prior agreements that are applicable to state or federal arbitration rules. The arbitrator has authority to decide the extent to which rules of evidence will apply, unless parties have previous agreed otherwise.

Like with mediation, the arbitration process is confidential unless necessary for the winning party to file the arbitration with an appropriate court to achieve enforcement. Once it is filed with the court, it is enforceable as any other court judgement would be.

There are three main components of an arbitration process:

  1. Prehearing briefs
    • At this point, administration and union representatives have the chance to present their views and describe their evidence to the arbitrator. The briefs are used to assist the arbitrator and the two parties to focus on the issue at hand.
  1. Arbitration hearing.
    • This hearing is when both parties have the opportunity to present their case and evidence. During this hearing, it is very common to call witnesses who have observed particular events. Important evidence that may be presented by the employee or management could help prove past practices. Some examples of evidence that could be used are time cards, performance appraisals, customer or co-worker complaints, and warnings. It is possible that closing statements could take place at this hearing. This hearing is an opportunity for both parties to summarise key aspects.
  1. Arbitrator’s decision.
    • It is common for labour contracts to require that a decision be made within a certain time period. However, if no clause is in the contract, the arbitrator can make the decision within 30 minutes of the close of the hearing, or they could take a few months. When making a decision, an arbitrator will discuss:
      1. the issue presented
      2. the statement of facts
      3. the positions of the parties
  • the analysis or discussion
  • the award.

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