Bullying in the Workplace – Bad Bosses and Hostile Work Environments

Bullying in the Workplace – Bad Bosses and Hostile Work Environments

Bullying in the Workplace – Bad Bosses and Hostile Work Environments

Maybe you experienced bullying as a child in school. Bullying in schools was, and is still common place in some institutions. If so, those are memories you would likely prefer to leave behind. This might not be possible if you face a hostile work environment due to bullying at work. Are you being bullied at work? Many people are dealing with bullying at work on a daily basis, and don’t know where to turn for help. Don’t be ashamed, as it is not your fault. You are not responsible for someone else’s behaviour. Maybe you have even asked yourself whether you should stay or whether you should go. Is it time to move on and work with another organization? Don’t leave the organization yet, necessarily.

What is workplace bullying? What is workplace harassment? 

How does one define bullying in the workplace?

Bullying is an aggressive act, meant to destabilize and reduce the power of another, leaving the victim feeling isolated, rejected and hurt. Unfortunately for some people, they might experience bullying later on in adult life in the context of working relationships. Workplace bullying “usually involves repeated incidents or a pattern of behaviour that is intended to intimidate, offend, degrade or humiliate a particular person or group of people.[1]”

Although the title of the article is, “I have a bad boss”, workplace harassment takes place between all types of relationships in the workplace, between customers and employees, employees against other employees, and even employees against managers at times.

What is workplace harassment? What constitutes bullying at work?

Workplace harassment is basically the same as workplace bullying, except harassment is the legal term for offensive and/or hurtful behaviour that is unwanted and often repetitive in nature. This term might be important depending on where you live, and where you work, as the definition might be used to determine whether the behaviour itself if considered harassment. If it is, then you might be able to take recourse during those legislative schemes or administrative bodies. If not, you might need to try other approaches to dealing with the harassment.

Is bullying at work illegal?

In some jurisdictions, workplace harassment is indeed illegal, and is explicitly covered in workplace-related legislation. Ask your government ministry of employment and/or workplace compensation board to learn more about the legalities around appropriate workplace behaviour and workplace harassment. You might also have civil recourses through the courts, and/or recourse if the behaviour is viewed as a form of criminal harassment. In that sense, might consider reaching out to your local police station, say the harassment is serious. Read about the difference between reporting harassment in the workplace and to the police. 

Definition of Workplace Bullying in the UK

According to the UK Advisory, Conciliation and Arbitration Service (ACAS):
Bullying is "offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient."

Definition of Workplace Bullying in Australia

According to Safe Work Australia, a statutory agency, workplace bullying is defined as
"repeated and unreasonable behaviour directed toward a worker or group of workers that creates a risk to health and safety".

The Government of Western Australia Chamber of Commerce said:
"Bullying in the workplace may be described as repeated inappropriate behaviour that can occur at work and/or in the course of employment. It may be direct or indirect, verbal or physical, or some form of negative interaction between one or more persons against another or others. Bullying behaviour can be regarded as undermining an individual's right to dignity at work."

The Australian Human Rights Commission said one definition is:
“the repeated less favourable treatment of a person by another or others in the workplace, which may be considered unreasonable and inappropriate workplace practice. It includes behaviour that intimidates, offends, degrades or humiliates a worker”.

Definition of Workplace Bullying in New Zealand

"Bullying may be seen as something that someone repeatedly does or says to gain power and dominance over another, including any action or implied action, such as threats, intended to cause fear and distress.” Evans v Gen-i Limited unreported, D King, 29 August 2005, AA 333/05. 

Definition of Workplace Bullying in the United States

The Washington State Department of Labor & Industries:

"Workplace bullying refers to repeated, unreasonable actions of individuals (or a group) directed towards an employee (or a group of employees), which are intended to intimidate, degrade, humiliate, or undermine; or which create a risk to the health or safety of the employee(s)."

Definition of Workplace Harassment in Canada

Treasury Board Secretariat - Federal Public Service workers

Under the Policy on Harassment Prevention and Resolution, harassment is defined as: "improper conduct by an individual, that is directed at and offensive to another individual in the workplace, including at any event or any location related to work, and that the individual knew or ought reasonably to have known would cause offence or harm. 

It comprises objectionable act(s), comment(s) or display(s) that demean, belittle, or cause personal humiliation or embarrassment, and any act of intimidation or threat. It also includes harassment within the meaning of the Canadian Human Rights Act (i.e. based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and pardoned conviction)."

Quebec Commission des Normes du Travail - Quebec workers

"Psychological harassment at work is vexatious behaviour in the form of repeated conduct, verbal comments, actions or gestures: that are hostile or unwanted, that affect the employee’s dignity or psychological or physical integrity, that make the work environment harmful."

Ontario

The Occupational Health and Safety Act defines workplace harassment as "engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome."

This definition of workplace harassment is broad enough to include harassment prohibited under the Ontario Human Rights Code, as well as "psychological harassment" or "personal harassment."

Some of the types of harassment that workers could experience in the workplace include sexual harassment, teasing, intimidating or offensive jokes or innuendos, display or circulation of offensive pictures or materials, unwelcome, offensive, or intimidating phone calls, or bullying. Leering, unwelcome gifts or attention, offensive gestures, or spreading rumours could also be considered harassment.

Types of workplace harassment? Examples of workplace harassment. 

What does workplace bullying and harassment look like?

Bullying can take many forms, from subtle moves to isolate someone to overt acts of aggression. Some examples include spreading hurtful rumours and gossip about others that isn’t true, intimidating someone, undermining someone’s work on purpose, threatening or abusing someone, removing someone’s responsibilities without reason, changing work guidelines constantly, making offensive jokes that are obvious, yelling, belittling someone, tampering with someone’s personal items or equipment, intruding on someone’s privacy, or making someone feel excluded or unwanted.[2] Even email bullying at work might take place, which might include any threatening behaviour over email. All of these behaviours demean someone, and over time, might erode their self-esteem and trust in themselves and trust in others. It also creates an unhealthy work environment, whereby the victim and other team members might start to fear confrontation or simply coming into work at all.

How does bullying start?

Bullying might start for varying reasons. Maybe someone has anger management problems and fails to address their anger effectively, taking it out on others. Maybe someone was bullied at another time in their life, and they are re-living the pattern – maybe they do not realize the true impact of their behaviour. Maybe the person has a personality type that makes it more difficult to empathize with others. But remember, it doesn’t matter that much why it started, it just matters that you are addressing it, so that it stops. These reasons do not excuse someone’s destructive behaviour. You still need to set boundaries.

Impact and consequences of workplace bullying

Workplace bullying hurts people, the team and the organization. The human impacts include frustration, helplessness, decreased confidence, anxiety, family tension, low morale and more.[3]

Workplace bullying also hurts your organization or company. Impacts include, increased turnover, costs to workplace health programs, increased risk to workplace incidents, decreased productivity, compromised corporate brand and decreased customer service quality.[4]

How to deal with a bully at work?

If you believe you are a victim of harassment or workplace bullying, also known as office bullying, take some of these steps, and also read out blog about Bullying and Harassment with some tips;

1. Make it clear to the person that their behaviour is unwanted. Have a witness, such as a labour/union representative or human resources officer with you.
2. Document everything, including the date, time and behaviour, the impact on you, the witnesses present and the outcome. If there is written proof, keep this as well.
3. Report each incident to the appropriate person. Seek out the services of an ombudsman, special contact in the organization or human resources.[5] They will be able to provide advice on how to report workplace bullying.
4. Don’t convince yourself that this behaviour is acceptable or somehow warranted by something that you have done. Victims may feel vulnerable and as if they have no option but to remain silent.
5. Take these steps before you decide to quit your job. Although there may be a power imbalance between the victim and the bully, one person or even a group of persons is not necessarily representative of the whole organization.

Read our blog about what an employer can do to address harassment effectively. If you are a witness to workplace harassment, be sure to reach out for support, and follow the above recommendations as well (including documentation and reporting). Thank you for being a self-leader, and helping to contribute to positive change in your organization. Instead of allowing the conflict to escalate negatively, you are resolving the conflict.

Top 7 Tips for Mediators Addressing Workplace Harassment

If you are a mediator, how do you deal with workplace harassment? 

1. Are the clients fully capable and interested in mediating the case? If one of the clients might be emotionally and psychologically struggling, it might be inappropriate to invite them to participate in mediation unless they have approval from their doctor or attending professional;
2. Consider starting your time with the clients as a consultant to discuss their options, and then with conflict coaching so they are empowered to express their concerns when the time for mediation is appropriate. This is likely the best time to have the parties learn about the harassment policy and process, so that their expectations are managed. The truth is, the other person might not be separated (fired), so they might be asked to resolve the conflict with the help of a mediator. Of course, mediation is voluntary, but parties might aim for a collaborative solution, especially if one of the parties says sorry and genuinely will make an effort to improve their behaviour;
3. Before the mediation, ensure that the parties are aware of their rights and obligations. Give them this website to learn more about harassment and boundaries in the workplace. Also, ask the parties if they would like a support person or lawyer present in the sessions, and offer the same to the other party as well;
4. They might not be interested in working face-to-face with the other party, so if they are healthy and very interested in pursuing mediation, offer some alternative approaches, such as shuttle mediation (where the parties are in separate rooms and the mediator goes between each to manage the discussions and negotiation), or invite the parties to sit in the same room, but have them facing other directions;
5. Many parts of the mediation might be similar, whereby the mediator is there to guide discussions in a safe environment with appropriate communication norms, ensuring that both parties are heard and that they are able to find a solution that works for both of them;
6. A big part of the mediation might be future-focused, helping the parties establish new norms for working together. Work with them to come up with some broad norms for their relationship, and then talk through some examples and how they would be applied.
7. Discuss ways in which parties might ask for help or talk to the other person, if there is a ‘relapse’ in behaviour.

Keywords:
 

Types of bullying, bullying and mental health, the bully at work, workplacebullying, types of workplace harassment, intimidation at work, retaliation in the workplace, against bullying, verbal abuse in the workplace.

About the Author - Bullying in the Workplace – Bad Bosses and Hostile Work Environments

Rhema - Legal Dispute Blogger in collaboration with Mediate2go

Rhema Kang is a litigation lawyer. She graduated with an Honours Bachelor of Arts from the University of Toronto in International Relations, and Juris Doctor from the University of Ottawa. She first became excited about mediation while working for the Honourable George W. Adams, a prominent Canadian mediator who handles legal disputes worth up to several hundred million dollars. Rhema was the researcher behind the book, Mediating Justice: Legal Dispute Negotiations, and won second prize in the FMC Negotiation Competition. Rhema enjoys dark chocolate with sea salt and finds it awkward to write about herself in the third person.

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[1] Canadian Centre for Occupational Health and Safety

[2] Canadian Centre for Occupational Health and Safety

[3] Canadian Centre for Occupational Health and Safety

[4] Canadian Centre for Occupational Health and Safety

[5] Canadian Centre for Occupational Health and Safety

Introduction to Real Estate Disputes

Introduction to Real Estate Disputes

Tip: Before you sign a real estate contract, check to see if it has a Mediation Clause.

Real Estate touches most of our lives; buying your first home, dreaming of that 2nd home away from the the city, or downsizing after your children have started having their own kids. Dreams of opening that bakery after retirement and finding the perfect location on Main Street, only to discover the city use permit is no longer valid due to expired city permits.

Sometimes, what may have appeared as the perfect transaction, turns into a nightmare between buyers and sellers, landlord and tenants, or parties of interest such as you and the Home Owners Association. Disputes do occur in Real Estate, which can be costly, emotional, stressful, and most importantly, time consuming. Here are some examples.

Examples real estate conflicts:

1. The buyers purchased their Bay Area home. Within days of purchasing, a plumbing back-up causes damage. The problem was rooted in the sewer system, and the cost to repair included new sewer lines to be constructed from the street to the house. Unresolved for several months, it continued to back-up. The buyers went to an Attorney. 
2. The buyers alleged Non Disclosure - an accusation which the Sellers denied. The legal clock began to tick for all concerned. 
3. The homeowner purchased property with a Homeowners Association that offered well manicured lawns, lush landscaping and high-end homes. The agreement signed came with CCR'S (Covenants Conditions and Restrictions) requiring the purchaser to landscape the property. The new homeowner declined to landscape according to the Homeowner's Association. The Association had a duty to enforce the rules, so another legal battle ensued. 
4. The landlord and tenant fight over a security deposit over damages. Digging deeper, no one did a rental agreement or a walk thru prior to renting or moving out.

Alternative Dispute Resolution and Real Estate

When a dispute does occur in real estate, it is not the end of the world. In California, as within other jurisdictions, Alternative Dispute Resolution (ADR) is now playing a larger role to resolve these challenges as they arise.

Real Estate contracts written by the California Association of Realtors require that parties try mediation prior to a process of arbitration or litigation. Mediation can help parties with various types of real estate contracts, including buyers, sellers, landlords and tenants. In November, the California Association of Realtors formed a group of mediators specialized in real estate disputes to help resolve issues. The group, known as The Mediation Center, helps parties avoid unnecessarily long legal battles.

Mediation services offers many benefits. A conflict that might have lasted months or years can be resolved within a matter of hours. For example, a buyer and seller of the Bay Area had a conflict about tree roots going over each other's property. Four hours after the mediation commenced, the parties had a written settlement. Courts also support ADR via "small claims" or civil unlimited cases. One can gain information at the local Self Help Center or the Court clerk in each county in California. The Superior Court in Sonora of Tuolumne County also has a active mediation panel. Those members settle in excess of 80% of disputes. The disputants often leave the court happy, and rarely return.

Private mediation is another option for disputants.

Conclusion - Introduction to Real Estate Disputes

There is saying in the legal community; "Why litigate when you can mediate?" Be willing to resolve your dispute with mediation, which can often bring about a great many benefits, versus the the frustration and expense of litigation.

About the author - Real Estate Disputes

Jim W Hildreth, Mediator, focuses his practice on California Real Estate Disputes. He serves on multiple Superior Court rosters as a civil mediator and was appointed to the California Association of Realtors as a mediator. He serves the San Francisco Bay Area, Central Valley & Mother Lode. Contact Jim Hildreth and visit his site.

What is ADR?

What is ADR?

Alternative Dispute Resolution

Introduction to ADR

Popular television shows depict trials as the climatic event – an intellectual sparring of wit and strategy – and the whole dispute is over within an hour. In reality, legal disputes drag over months or years before a trial may take place. Preparation can be tedious and insipid, while 95% of lawsuits will settle and never even go to trial, which has led some lawyers to write about the phenomenon of the “Vanishing Trial”.[1]

Most lawsuits today are resolved through Alternative Dispute Resolution (ADR). ADR refers to various processes to resolve disputes outside of the formal public courts system. The main forms of ADR are negotiation, mediation, and arbitration, although there are also hybrid processes such as the minitrial, med-arb, and early neutral evaluation.

A Spectrum of ADR Options

ADR options are organized along a spectrum, from negotiation, which is the least formal process, to arbitration, which is the most formal process and therefore, the most similar to a trial. The more informal the process, the more control the parties have. In more formal processes such as arbitration, the parties have less control because the outcome is determined by a third party. Mediation falls somewhere in between. These processes are by no means mutually exclusive, and parties may pursue these options in sequence, or even at the same time.

Negotiation is the most informal process and has the fewest rules and procedures. Parties may negotiate directly with each other, or through their lawyers. Mediation involves a neutral third-party who does not impose a solution but helps the parties reach a resolution by facilitating more structured negotiations. The parties retain control over the final agreement. Arbitration is the most formal process where a third party adjudicator has the power to impose a binding solution on the parties after hearing each party’s position.

Key Differences Between ADR and the Traditional Trial

Trials are open, so all members of the public, including journalists, are welcome to attend (with a few exceptions in special cases). Furthermore, trial decisions are published and establish a precedent for future cases. In contrast, ADR is private and the result remains confidential between the parties.

The courts system is a formal process with rules of civil procedure and statutory deadlines. ADR is crafted to suit the needs and demands of the parties, and may take many different forms.

Trials are adversarial, where each party advocates that the law favours its position, and the judge ultimately rules in favour of one party. Although in ADR each party is seeking to maximize personal gains, the parties accomplish this through cooperation and compromise, rather than a winner-takes-all situation. Especially in non-adjudicative options such as mediation, “a mediator can often persuade the parties to resolve their dispute without determining which of their positions is ‘right’”. [2] Because ADR is less adversarial, it is better suited when parties want to continue their relationship beyond the present dispute.

Advantages of ADR

Some of the advantages that make ADR appealing are:

1.     Cost

The cost of a trial has made it prohibitive. In 1995, it cost each party over $40,000 in legal fees to go to trial, and in 2011, this estimate was close to $60,000.[3] This astronomical cost is out of reach for many people and even corporations, and is often disproportionate to the amount in dispute. Moreover, since the losing party is often required to pay part of the winning party’s legal fees on top of its own, this penalty serves as a looming risk and a deterrent for parties to go to trial.

The cost of resolving a dispute informally through ADR is much lower, and parties have more control over the process and the resulting legal fees. For smaller disputes, parties may choose less costly mediators, but select specialized mediators at a higher price for more complex disputes. A dispute over a $100 million may be resolved in a single day, negating the need to spend months of expensive preparation for a trial.

2.     Speed and efficiency

A backlog in the court system has meant when litigants request a trial date, they have to wait one or two years from that point, and even longer in some jurisdictions. Even after trial, parties may wait weeks or months for a decision to be released.

In contrast, a mediation or arbitration can be scheduled within a few months, and can be resolved fairly quickly. While courts usually discourage forum-shopping, which is choosing one court over another, ADR allows the parties to choose a decision-maker who best fits their schedule and needs. In mediation, the mediator does not make a decision, rather helping the parties come to a solution collaboratively. ADR may also remove the need for pre-trial procedures such as examinations-for-discovery and motions, which may be time-consuming and cause further delays. Instead, if there is a dispute about evidence or submissions, the parties may informally negotiate a mutually acceptable solution.

3.     Customizing the process

ADR is flexible to become whatever the parties agree to make of it. Parties may set their own procedures and decide which law applies. Most courts have judges who are generalists and must decide on cases ranging from criminal convictions to complex shareholder disputes – although there a few exceptions for Family Law Court or the Commercial List in Toronto. But in ADR, parties may choose a decision-maker who is a recognized expert in the area of the dispute.

Parties are free to use whichever form of ADR best matches their priorities. Parties may choose to air their grievances, or to never speak to each other except through a neutral third-party. They can choose whether their priority is to reconcile the parties in conflict or simply to reach a binding decision for the dispute at hand. Moreover, the parties can tailor the resolution to their own needs. Unlike court decisions, which often grant judgment in the form of a monetary payment, in ADR the parties have a greater range of options. Sometimes an aggrieved party may be simply seeking an apology or an acknowledgement that his/her actions were right. In other cases, one party may want to maintain the relationship while having a discrete issue addressed, which is easier to accomplish in an informal ADR atmosphere than in an adversarial process that pitches one party against another.

4.     Privacy and maintaining relationships

Another advantage of using ADR is that the situation giving rise to the dispute, the conflict resolution process, and the outcome all remain private and confidential between the parties and any decision maker. Typically, the decision-maker will require all participants to sign a confidentiality agreement. Privacy may be an important factor when there are claims that could significantly harm one party’s image and reputation, e.g. allegations of fraud, sexual harassment. With a private ADR resolution, the parties avoid being publicly convicted and may even agree to a no-fault settlement.

The ability to privately and quietly resolve a conflict allows parties to maintain their relationship if that is one of their goals.

When a Trial May be Preferable to ADR

ADR is not suitable for every legal dispute. Disputes involving the interpretation of a new statute or provision, the application of the Charter and Constitutional rights, and other public interest litigation require a public ruling to establish a precedent. Class actions may require litigation in order to ensure that all plaintiffs receive an equivalent remedy, rather than separate and inconsistent results. A trial is also preferable in situations where the defendant is being sanctioned, its conduct is condemned, and deterrence is a goal.[4] 

About the Author - What is ADR

Rhema - Legal Dispute Blogger

Rhema Kang is a litigation lawyer. She graduated with an Honours Bachelor of Arts from the University of Toronto in International Relations, and Juris Doctor from the University of Ottawa. She first became excited about mediation while working for the Honourable George W. Adams, a prominent Canadian mediator who handles legal disputes worth up to several hundred million dollars. Rhema was the researcher behind the book, Mediating Justice: Legal Dispute Negotiations, and won second prize in the FMC Negotiation Competition. Rhema enjoys dark chocolate with sea salt and finds it awkward to write about herself in the third person.

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[1] Robert M Ackerman, “Vanishing Trial, Vanishing Community? The Potential Effect of the Vanishing Trial on America’s Social Capital” (2006) J Disp Resol165.

[2] Frank E.A. Sander and Stephen B. Goldberg, “Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure” Negotiation Journal (1994) 49 at 56.

[3] George W. Adams, Mediating Justice: Legal Dispute Negotiations, 2d ed (Toronto: CCH Canadian Limited, 2011).

[4] Sander and Goldberg at 60.


 

Mediation Services: How to Find a Good Mediator

How to Find a Good Mediator

Introduction to finding a mediator

Finding a good mediator takes some time and research. Like choosing any professional to assist you with something in your life, you should ask the right questions to ensure you have found the right match. Mediation services can assist you in many ways, and finding a good mediator is crucial to effective mediation services.

The best mediators are those who have the knowledge and skills to effectively manage their own personal and professional conflicts, in addition to your issues. As mediators, we think that conflict in itself is not a bad thing. It only becomes 'bad' or negative if it is destructive (versus constructive conflict). The mediator is there to guide you through a process to resolve your issues.

Personal qualities of a good mediator

A mediator is not a good mediator if they are known as a good lawyer or because they simply say they are a good mediator. When you first speak to a mediator, look for these listed characteristics to increase the chances that the mediation services will work for you and the other party. Boulie 1996, cited in Bringing Peace into the Room: The Personal Qualities of the Mediator and their Impact in Mediation,  suggested that mediators who are effective in their role are:

• empathetic
• non-judgemental; 
• patient; 
• persuasive; 
• optimistic
• persistent;
• trustworth;
• intelligent;
• creative;
• flexible; and
• that they have a good sense of humor and common sense.

In addition, these qualities are said to assist mediators become better in their roles, and may also be considered as important in choosing the right mediator (as cited in Bringing Peace into the Room: The Personal Qualities of the Mediator and their Impact in Mediation):

• self-awareness;
• presence;
• authenticity;
• congruence; and
• integration.

This article also emphasized that these qualities not only come via intellectual ability or scholarship, but experience.

What is the take-away? If you get a good feeling about the mediator; if they are friendly, patient, kind, empathetic, these are qualities to help you in your decision  to find the right mediator and mediation services.

Professional qualities of a good mediator

Katheryn Munn came up with a helpful set of questions to ask a prospective mediator. Feel free to address each of these issues, which are inspired by her questions:

1. Do you belong to any professional organizations for mediators? 
2. What kind of training have you had in mediation? Many hours of mediation specific training, and ideally, a relevant degree (be it social work, psychology, or subject matter specific, related to the conflict). Feel free to ask which specific classes they took, as some programs might not be focused on conflict resolution.
3. What kinds of mediation have you handled? Many hours of completed mediation sessions in your specific area is important. Feel free to ask for testimonials. If you need family mediation services, but they are a commercial mediator, they might not have sufficient relevant experience.
4. How much will it cost? The mediation should cost a fair amount, and payment that works for you. Ask for a few quotes, and get back to the mediator before you commit. Also ask your local government or court office if the mediation services could be paid for or subsidized by another body or organization.
5. How long will it take? Be sure the mediation will take a reasonable about of time. Again, shop around, and ask this question. If the mediator doesn't have time to see you within a month, you might find someone else that is available right away. Mediation should be more efficient than the court system, so don't be shy to ask around.

Some of the aforementioned questions might be answered within the profile. Ask us if you have more questions.

Mediation Services versus Arbitration: What’s the Difference?

Mediation Services versus Arbitration: What’s the Difference?

Mediate2go: Mediation Services versus Arbitration: What’s the Difference?

Intro - Forms of Alternative Dispute Resolution

Mediation and Arbitration are two forms of alternative dispute resolution (ADR).  This means that they are ways of settling disputes without having to resort to the court system and traditional litigation.  Remember that the starting point to both mediation and arbitration is consensual.  That is, both parties have decided to use mediation or arbitration as a “first resort” rather than simply going to court.  Some jurisdictions in Canada and the United States have mandatory mediation for certain types of disputes. 

Often, a mediation or arbitration process may arise because the parties have a contractual relationship that specifies that any disputes will be solved by such methods.  Other times, the parties voluntarily agree to do so because it appears that a mutually agreeable result might be more readily attainable, or because a more timely decision is needed than would be available through the courts.  Another major benefit is that both are private, so evidence and any settlement or order that is eventually reached need not be disclosed to the public. 

There are reasons why choosing mediation or arbitration (or neither) might make more sense than the other options, depending on the situation. This post should serve as a short guide to how and why you might consider either option.

What is Arbitration?

Traditional Process

Arbitration is more like a traditional courtroom process than mediation. Both sides and their representatives (lawyers, usually) appear before an arbitrator, who is an individual selected to resolve the specific dispute. At the outset, the parties can adjust or agree on specific rules for the arbitration. This can help speed up the process or make it more efficient for the parties.  For example, the rules of evidence or disclosure of documents may be altered from what they might be in the jurisdiction’s court system.  After a sort of “trial”, which includes different procedural stages such as submission of evidence and arguments, the arbitrator renders a final decision.  The decision of an arbitration can be enforced like a court order and is binding on both of the parties.  The parties can agree to limit the right to “appeal” the decision of an arbitrator. In such cases, unless there are obvious and serious violations of procedural rules or norms, the outcome is final.

Advantages to Arbitration

There are several advantages to arbitration.  An obvious one is the ability of the parties to choose the arbitrator.  For commercial parties, this could mean picking someone with much expertise in the area of the dispute.  This can easily save time and reduce the need to introduce certain types of evidence, because the arbitrator is already familiar with the subject area and the applicable law. Arbitration can save time and can get to the final judgment stage much more quickly than a standard trial. Sometimes the benefit of having an issue decided once and for all can be a huge benefit, even for the party that loses.  Arbitration can also be less costly, especially when it does not drag on. Many of these benefits are more likely to be attained when the parties have a detailed and satisfactory “arbitration agreement”, which is the document that sets the rules for the arbitration.

Issues with Arbitration

Those considering arbitration should be aware, however, that the financial costs are not necessarily lower than relying on the court system.  Any lawyers and representatives still need to be paid, as does the arbitrator.  Depending on the rules of the arbitration agreement, it may or may not be possible to award “costs” as part of the decision.  The potential limits on the right to appeal may not sit well with parties who initially agree to such terms, but then find themselves on the losing end.

What is Mediation?

Mediation, a more flexible process

Mediation is most different from arbitration in that it never results in an “order”, though it may still result in a settlement. In a mediation, a third-party mediator prompts and guides the parties through a negotiation process. This is notably less formal than courtroom proceedings or arbitration. Mediators are not judges and they do not act like them. Instead, they help facilitate discussion in the hope that the parties may come to a mutually-agreed resolution - a consensual settlement. Mediations may take hours or days depending on the parties and the complexity of the case involved.   

Advantages to Mediation

Like arbitration, the advantages to mediation can be numerous.  By definition, any mediated settlement must be at the express consent of each side.  Thus any result is presumably more to the liking of the parties than in a case where a party is adjudged to have “won”.  For this reason mediation can be less adversarial. It is also a powerful tool to ensure that pre-existing relationships remain intact. Employer/employee relationships, for example, may be better handled through mediation. Mediations can lead to faster settlements than arbitration, and it gives the parties a high degree of control. While the mediation itself is private, the parties can and often do seek legal advice about their position, so that they can come to the mediation better informed. The relatively informal process may also put the parties at ease and remove the anxiety or seriousness of courtroom proceedings.  They can also be “paused” and resumed at a later date if the parties require additional time to consider the circumstances.

Issues with Mediation

Mediation may not be appropriate in all situations. A key factor that may hamper the effectiveness of a mediation is the status of the relationship of the parties and their willingness to negotiate. “Failed” mediations may leave parties dissatisfied and may feel like time and money has been wasted.  If the dispute has not been satisfactorily resolved, the parties may feel the need to move to arbitration or litigation.  Finally, some cases, such as where one party has a high degree of power, control, or expertise versus the other, may not be appropriate for mediation.

Mediation versus Arbitration: Conclusions

Both mediation and arbitration can be effective tools for resolving a dispute outside of the court system. Arbitration is distinctly more formal and presupposes that there is an unresolvable matter on which the parties would like to have a judgment from a neutral third party. Mediation is consensus-based and can only lead to mutually-agreed settlements, or a standstill. Each have distinct advantages and the potential to lead to cost- and time-savings versus traditional litigation. If you find yourself in the midst of an important dispute,  consider whether either arbitration or litigation may be an appropriate course of action before you jump to the conclusion that a lawsuit is the only option. 

For more information about mediation, arbitration, and other forms of alternative dispute resolution, please visit ADR Canada, or Cornell's Legal Information Institute.

About the Author

Dan Lawlor is a Mediate2go Blogger focused on estates and commercial dispute resolution. Dan is a graduate of McGill University's Faculty of Law with interests in conflict resolution, business law and writing. He played an important role as a director with Mediation at McGill, building connections with the community to improve outreach. Currently he is a lawyer with Campbell Mihailovich Uggenti LLP in Hamilton, Ontario. Dan loves team sports, reading, and traveling. 

Should I stay or should I go? When to Choose Therapy and When to Divorce

Mediate2go: When to Choose Therapy, When to Divorce (Family Mediation)

How do I know if I should be in couples therapy, or on the road to separation, divorce and mediation

Do you wonder if the grass is greener when the waters get rough in your marriage?  It’s normal in any relationship to have those “I don’t like you right now” thoughts (hopefully rephrased if spoken aloud). Conflict is inevitable, and very healthy if it is resolved. But when those thoughts turn into more serious questioning about whether you should stay or go, it’s time to do some serious thinking, because having, and voicing, those thoughts can further threaten a fragile partnership.  

It may be time to stop second-guessing your commitment, and bravely face the question: Should I stay or should I go?  

In part, the answer differs depending on what stage you’re in.

Early stage relationships:  

If, in the first few months to a year of being with someone, your ‘gut’ doesn’t feel right or there is a lot of unhealthy conflict, there is good reason to simply go your separate ways. It probably won’t get much better than that early period where we put our best face forward.

But ending even a short-term relationship can be difficult. We wrap so much of our self-esteem in whether a relationship lasts or not. At this beginning stage, though, it’s important to realize that you’re both looking for a good match. It’s not personal. Just because you initially like someone or have had a good email exchange doesn’t mean you’re a good match. Just because you’re not a good match doesn’t mean there’s anything wrong with either of you. Stop trying to fit the square peg into the round hole and move forward knowing there’s a better match out there for both of you. There would be less divorce if people listened to their early doubts and avoided getting stuck in something that doesn’t feel good right out of the gate.

Established Relationships

You’ve been together for a while, and you realize you’re having thoughts about leaving the relationship. Every situation is unique, but let’s talk generally about good and bad reasons to stay or leave.

Mediate2go: When to Choose Therapy, When to Divorce (Family Mediation)

BAD REASONS TO STAY - Choose Mediation

• (Only) For the kids.   While being a parent might mean putting some extra effort into trying to resolve things before you throw in the towel, it’s never a good idea to stay only for the children.  Children need happy parents who aren’t in constant destructive conflict. I believe that having parents in negative conflict affects children more seriously than divorce or separation.
• (Only) Money.  I get that there are practicalities involved, but know that your community is abundant with options for assistance. 
• Fear of being alone.  If you have been dependent on your partner, a therapist can help you learn to address these fears.  Amazing things can happen when you kick fear out of the picture. Also, be sure to read about destructive relationships and building confidence.
• To buffer the children from the other parent.  If you are in an abusive relationship, please seek support.  Staying out of fear that your partner will do more harm to the children if you leave is not healthy thinking. 
• You don’t want to hurt your partner (leaving is hard). Sympathy is never a good reason to stay. You both deserve better than that. No, leaving a marriage isn’t easy, but that’s no reason to put off being happy.
• (Only) Because you love them, or they love you.  If that’s the only thing holding you together…if you’re in pain and everything else says it’s not working, then love is just not enough.

GOOD REASONS TO LEAVE - Choose Mediation

When there is something you fundamentally need that the relationship can’t provide.  Following are some examples of this.

• Disrespect/Abuse. You or your children are being hurt.  Abuse is a recurring pattern of hurtful or controlling behaviours that create a power imbalance. Safety comes first. Read this about unhealthy relationships.
• Addiction.  If you have a partner who is in an addiction and not seeking treatment or taking responsibility.
• Dishonesty and secrecy.  If you don’t know whether you are getting the truth or not, it’s impossible (and perhaps unwise) to try to build trust.
• Infidelity.   While good people can make bad mistakes, and infidelity can be worked through with a therapist’s help, infidelity can also indicate a lack of empathy, or an inability to draw appropriate boundaries of safety around the relationship. 
• You’ve lost the desire to be together and you don’t want it back.  If you or your partner already have one foot out the door, it’s best to recognize it and be honest about it.    

BAD REASONS TO LEAVE - Choose Therapy

• You’re unhappy.  Are you blaming your relationship for your personal unhappiness or depression? Sometimes our partners and relationships take on an ugly hue when we’re not in our own personal happy place. Try using a therapist to learn healthy thinking patterns, and see how that changes the picture.
• Your relationship doesn’t feel the same as it used to.  Marriages go through stages, and it’s natural for that early passionate intensity to lessen with time. Be your best self, and communicate clearly about what you feel and need.
• You argue a lot. Conflict can be made healthier, and conflict resolution can be taught. Habits can be changed, and patterns can be altered. Clarity about whether to leave or stay can also be assisted by my “basket” theory:  put a relationship problem into a basket in order to determine how to handle them. Read about destructive relationships and unhealthy relationships.
• Your partner has changed (or you have, and they refuse to).  Some people change, and some don’t. Definitely, people change when they want to, not when it suits us. Try seeing a therapist if you both want to better understand and connect with each other through personal change.
• You’ve stopped trying.  Have you stopped feeding your relationship? Are you expecting changes from your partner and ignoring what you can do to improve the situation? Try increasing your own effort (and your empathy) to be loving, and see what happens.
• Your partner doesn’t know what you need.  Are you communicating your unhappiness? Ending a relationship without clearly letting your partner know what you need may be less than fair. Ask for what you need.
• Hurtful things have happened.  People make mistakes, and with effort, empathy, taking responsibility and forgiveness, wrongs can be righted and the past can move farther away. 

GOOD REASONS TO STAY - Choose Therapy

Both parties are ready to use a therapist and work hard to make things better.  In spite of issues X, Y and Z, you both desperately want to be together and are willing to work at it in therapy and make personal changes. I have worked with a lot of couples in the last twenty years, and I can’t guess outcomes. I have been very surprised by couples who have made me wonder why on earth they were together, and then suddenly something shifts and the space is created for a different way of being together. If you both want it to work, and you both have the energy to commit to doing something differently, then ANYTHING is possible.

Ultimately, no one can tell you how long to stay in a relationship that feels uncomfortable.  This is intended only as a guideline to clarify a muddy picture. Remember that if you decide to stay, therapy can assist in building intimacy and communication skills.  If you decide to leave, mediation can be useful when negotiations fall apart.

About the Author: Lynda Martens is the Wabisabi Therapist and a contributor to the Mediate to Go Blog. Please read her other contributions by searching on this page for Lynda Martens.