What Is Mediation?

• Mediation is a process of conflict resolution that empowers people to work out their own plan, resolving a dispute peacefully by coming up with creative solutions that work for them.
• In mediation a neutral third party (the mediator) facilitates communication between the disputing parties.
• The mediator guides the conversation so the disputants decide on their own terms of agreement.
• The mediator may offer information or suggestions, but doesn’t provide legal advice or impose any judgement or final decision.
• The mediator ensures that the process is free of power imbalance, and that any agreement, if reached, is acceptable to both sides and properly recorded.

How Is Mediation Different From Litigation?

• Mediation works to find common ground, and to arrive at a settlement that satisfies the interests of all stakeholders. Litigation is an adversarial process.
• A mediator does not take sides or give legal advice but remains entirely neutral. Lawyers work only on behalf of their client, offering advice only in their client’s best interest.
• Mediation settles disputes privately, whereas court records are open to the public.
• Parties in a mediated dispute make decisions on their own, unlike the court process in which decisions are imposed by a judge or jury.
• The time frame of mediation is more under the control of the parties in dispute and is usually quicker. The time frame of litigation is largely determined by the court system.

What Are The Advantages of Mediation?

• Control: In mediation you create your own solution. No decisions are forced upon you. The process is entirely voluntary so you are free to enter and end it at any time. When successful, however (as it most often is) you will be ensured of terms that make sense to you – because the terms are yours.
• Money: Mediation is usually less costly than court. You are paying for one mediator rather than for two lawyers, at an hourly rate that is often lower. An adversarial process typically takes longer as adversaries attempt to prove themselves right and the other wrong. Mediation is not concerned with judging or determining who is at fault, but with co-operating to find a solution.
• Time: The parties in dispute can proceed at the pace they choose, sometimes reaching settlement in a single session. As with court, however, the time frame (and thus the cost) is impossible to predict, since it varies depending on the complexity of the case and both parties’ commitment to settle.
• Understanding: In some cases the benefits of mediation extend beyond the substance of the settlement. Mediation requires that the parties communicate with one another. It works best when parties come to a better understanding of one another’s underlying fears and interests. An added benefit is often an increase in self-understanding.
• Respect: Greater appreciation for the other party is often a by-product of direct, non-adversarial communication. The search for common underlying interests often leads to enhanced mutual respect.
• Lasting Agreements: The terms of agreement are chosen by the clients, not imposed by a judge, so the parties are more likely to abide by them. The process of communicating in mediation often make parties better able to resolve future issues, should they arise.

Is Mediation Right for Everyone?

Although Mediation can address any type of conflict it isn’t the right method for everyone.

• Mediation only succeeds when both parties are willing and able to engage honestly in the process.
• More formal options, such as arbitration or court, may be preferable when power imbalance, abuse, or psychological factors prohibit either party from taking an active role.
• The less formal option of face-to-face negotiation, without a neutral third party, is always available to those who can communicate with one another calmly and effectively.

Are Mediated Divorce Settlements Legally Binding?

• At the end of a successful divorce mediation, the mediator will prepare a Memorandum Of Understanding or an equivalent report to summarize the agreed-upon terms. Settlement documents prepared by mediators are not signed by the clients.
• If the parties wish to convert the settlement into a legally binding document (for example into a separation agreement for a divorcing couple) they should each get independent legal advice and then arrange for a lawyer to convert the mediated agreement into a document to be signed and submitted to court.

Mike MacConnell
Director of Reflective Mediation

For more information on Mike MacConnell please visit http://divorceangels.ca/vendor/mike-macconnell/?r=7529