Mediation: What It Is And When (Or When Not) To Use It

An alternative to litigation in the criminal justice system has taken root in Canada. Mediation provides participants with a process for solving disputes in a wide variety of situations; currently, several provinces have a statutorily-defined process for mediation. Mediation has grown in popularity over the years, and now is even required in some instances before a lawsuit can reach the courts. Below is more information on mediation, as well as when and when not to use it:

What is mediation?

Mediation is a non-judicial process of resolving conflict, and it has these key characteristics that set it apart from the traditional legal process:

  • There are no bad guys and good guys – Mediation comes with a premise that none of the involved parties are solely responsible for a conflict. Unlike the traditional common-law principle of plaintiff and defendant, the individuals involved in mediation come to the table with no labels attached to them ahead of time.
  • Voluntary acceptance – Since mediation does not determine a "verdict", no participant in mediation is compelled to accept a particular course of action that may be discussed or evaluated. Parties have the right to reject anything they feel is unfair or unfavorable to their own interests.
  • Based on needs and interests – Mediation is focused on the needs and interests of the involved parties rather than the legal technicalities. It is a process that is primarily about finding a solution that is agreeable to all, rather than a process that is often self-centered and seemingly concerned more about how to go about finding justice than justice itself.
  • Uses a neutral negotiator – While legal proceedings are overseen by a judge who is impartial, the role of a judge is more hands-off than a mediator. Judges serve in a role akin to a referee between two opposing sides. In mediation, the mediator is a neutral negotiator who plays an active role in the discussion. They can provide advice and serve as an advocate for a peaceful, agreeable resolution to conflict.

When might mediation be preferable?

Mediation is an ideal process for resolving conflict in several situations, and it carries some advantages that make it worthwhile to consider:

  • Mediation is less expensive - Compared to a staggering $60,000 cost for an average 3-day civil trial, mediation is a much less-costly venture. Mediation doesn't demand the same amount of infrastructure or staffing that adds to the cost of civil litigation. For individuals seeking to find a resolution without spending an inordinate amount of money, mediation makes sense.
  • Mediation provides ownership - Instead of being forced to accept a solution that is neither desirable or preferable, mediation is a process that grants ownership to its participants. This ownership facet makes it much more likely that the parties involved in mediation will carry forward with their agreements.
  • Mediation helps keep tensions at a lower level - In cases where mediation is used, the parties are able to maintain a more-conciliatory stance than in those situations where confrontation is the norm. This helps defuse tense circumstances and provides an environment that allows for a possibility of reconciliation in the long-term.

When should mediation be considered a secondary option?

As advantageous as mediation can be in many instances, there are some circumstances that make mediation the less-ideal choice for conflict resolution:

  • Accusations of criminal wrongdoing - When one party is accused of committing a serious criminal act, then it becomes difficult for mediation to resolve the complexities and arrive at a satisfactory solution for everyone involved. This is a scenario that is better handled by traditional legal processes, since it is highly unlikely for the party that feels particularly aggrieved as well as the perceived offender to yield on their desires for justice or mercy, accordingly.
  • Lack of representation - If one or both of the parties are not represented by an attorney or other qualified advocate, then mediation is not an appropriate option to choose in most instances. Even though the atmosphere of mediation is less-adversarial by design, individuals should always seek to have representation. Otherwise, the risk is that one party in the conflict may not be able to obtain a fair outcome, even when they initially feel they have.
  • Nefarious motives - Whenever one of the parties involved in mediation wishes to use the process for purposes other than a legitimate resolution of a dispute, then mediation immediately should be dismissed as a viable alternative. Mediation only works when both parties are interested in finding a fair solution to a problem, and it is made a mockery if it is used for attacking another person or in an attempt to coerce them.

For more information, contact a legal specialist like Mackay & Company Lawyers.