We asked Vancouver mediator Wally Oppal, Q.C. to provide some background information on the process of mediation and how a mediator can help to advance the resolution of disputes.
What is mediation?
Mediation is a form of Alternative Dispute Resolution wherein settlements of disputes are achieved out of the traditional court system. Disputing parties can appoint a mediator whose main responsibility is to facilitate the discussion and help resolve the dispute. If all goes well, a mediation session will end in a settlement agreement.
Conflicts and disputes often arise from miscommunication between parties which can quickly escalate and become fuelled with further conflict, eventually leading to the breakdown of relationships and communication channels. Mediation is designed to properly deal with conflicts that can arise as a result of misunderstandings such as these.
In traditional litigation, there are fairly clear rules regarding admissibility of evidence. Often, there are timelines regarding the production of evidence and evidence is taken under oath which is often followed by lengthy cross-examination. Mediation overcomes those limitations as it is less cumbersome, less rule bound, less formal, less costly and generally quicker.
What role does the mediator play?
The role of the mediator is a neutral one in which a certified professional ensures that parties are communicating clearly. The mediator helps parties reach a common ground by encouraging each side to have an open mind, communicate their feelings and perspectives and to recognize the mutual goal of realizing a resolution.
What is the difference between mediation and arbitration?
Both mediation and arbitration are a form of Alternative Dispute Resolution but differ significantly in the way a settlement is reached. In mediation, parties are encouraged by the mediator to communicate and reach a common ground. Arbitration, on the other hand, is more formal as the selected arbitrator makes the decision based on the arguments presented and the evidence given under oath. It is not unusual for a mediation to become an arbitration.
What are the values of mediation and arbitration?
Mediation and arbitration are both designed to reach settlement in a more timely and cost efficient manner than litigation. Given those benefits offered by mediation and arbitration, and the current overarching principle of the legal system which demands access to justice, it is clear why the last 20 years in BC, the province has undergone a movement towards Alternative Dispute Resolution and away from the traditional court room.