Challenges of Mediation

Challenges of Mediation

Biggest challenges (and solutions) for a mediator. Read this blog for tips. If you have other challenges or solutions, be sure to comment below.

We asked mediators about their biggest challenges. This is what they told us. Read our tips to address each of these challenges. Also, watch this video to address many of these challenges of mediation.

1. Finding clients

It’s not easy, but finding clients takes a multifaceted approach. 

2. Hard-headed clients and lawyers

Remind clients that mediation is voluntary, and that they are completely responsible for resolving the issues, with your help. Even if you need to terminate a process, remind them that they are welcome to come back and try again. Before mediation, try conflict coaching as well, and teaching self-leadership. As we mention in the next section, try building trust with clients.

3. Clients who do not want help

Maybe your client is filled with anger or a desire for revenge. Take time to define trust and build trust with clients. With a good relationship with your client, and also some coaching services, you are more likely to have success with clients not wanting help.

4. Unsure of what to say next

It is okay to not have the answer. Leave time for silence in the process. Sometimes you can ask the parties what they think in the moment if you don’t know what to say. It is their process. Also, you can say, you don’t know, if you don’t have the answer, or openly reflect with the clients about something you said, and correct yourself then. With time, you will build your confidence.

5. Staying neutral

A major ethical issue in mediation services is how to stay neutral. This will require much more reflection within yourself and with other colleagues, but have a constant running dialogue in your mind of what you feel, and what the client wants, and whether you are too ‘involved’. Ask colleagues for help. Neutrality isn’t as easy as we think, we bring in our humanity and past with us, but the key is caring for the client, and being as open-minded and non-judgmental as possible with their personality and what they want. 

6. Investment in the process and not the end result

This relates to neutrality – how to stay energized and invested while letting go of what the end result will be for clients. As mediators, we must care for each of our clients and do our best to ensure the process is fair. At the same time, the client is responsible to make the right decision. While you must ensure the client has the capacity and the resources to do so, you must remind yourself of your role to facilitate the process. Be sure to help the client and ask for advice if need be, to ensure you strike the right balance of investing and letting go.

7. Making money

This is a hard one, as mediators must make enough funds to have a viable practice, yet they must also put their client’s needs first. Once you have ensured that the client’s interests are met, money comes into the scenario. We recommend chatting with other mediators that have successful practices, and also people you know with successful businesses on what works for them. They can give you tips. Also read our blogs specific to your mediation services business: how to become a successful mediator, mediation jobs, and best business ideas for mediators.

8. Convincing people that mediation is the best solution

Clients need to be aware that mediation is not always the best option. There are benefits to mediation, but sometimes, formal processes like arbitration are better. Share all of these blogs with clients and ensure that the client makes the right decision for themselves. Still, promote mediation in your community and lecture at schools and colleges to promote the field overall.

9. Getting feedback from other mediators

Most mediator’s work on their own. Instead of feeling alone, join one of our partner associations like ACR, SCMA, NYSDRA, ADR Canada or ADFP in order to network and chat with mediators about your most challenging cases and what they would have done.

10. Trying to become a mediator

It can take years to build a practice. 

Negotiation Defined

Negotiation Defined

"Negotiation is a fact of life… Negotiation is a basic means of getting what you want from others..." See full quote below by Roger Fisher, William Ury and Bruce Patton, Getting to Yes, page 70 and 71

Mediate2go: Negotiation Defined

An Orange Illustration

Two chefs are fighting over a single orange. They both insist that each of them requires the whole orange. They finally agree to cut the orange in half, so they each get an equal share, and then they go their separate ways. The first chef squeezes out all the juice of his half orange into a sauce he is cooking, but it’s not quite enough. The second chef peels the rind into a cake he is baking, but it’s not quite enough either.

The chefs reached a fair compromise but what would have been a better resolution?

What is Negotiation?

When two or more parties encounter a problem in which they have differing goals and interests, they must enter into negotiation to agree on a resolution that is better than what they can achieve unilaterally. Although their interests are different, they may not necessarily be incompatible.

Examples of Negotiations

Negotiation is both a formal process in Alternative Dispute Resolution (ADR) or conflict resolution, and also an informal discussion for parties to reconcile their interests.

Formal Negotiations:

1. Countries coordinate an international effort to find and recover the remains of a missing plan
2. A buyer and seller of a house each want to get the best price
3. Lawyers try to settle a civil lawsuit or agree on a sentence for the accused
4. Labour union and management representatives negotiate over seniority rights or go to arbitration over a grievance
5. A married couple seeks the assistance of a mediator to help them deal with their divorce.

Informal Negotiations:

1. A couple decide on where to go for vacation or who will take out the garbage
2. An employee negotiates with her boss about when she can take vacation
3. A child negotiates for more TV time or a later bedtime 

Definitions from Negotiation Experts

[The art and science of negotiation] ... is concerned with situations in which two or more parties recognize that differences of interest and values exist among them and in which they want (or in which one or more are compelled) to seek a compromise agreement through negotiation.

Howard Raiffa, The Art and Science of Negotiation (Cambridge, MA: Harvard University Press, 1982 at 7).

For most people bargaining and negotiation mean the same thing: however, we will be quite distinctive in the way we use the two words. We will use the term bargaining to describe the competitive win-lose situations such as haggling over price that happens at a yard sale, flea market or used car lot; we will use the term negotiation to refer to win-win situations such as those that occur when parties are trying to find a mutually acceptable solution to a complex conflict

RJ Lewicki, B Barry and DM Saunders, Negotiation, 6^th ed, (New York:McGraw-Hill/Irwin, 2010) at 3.

Negotiation is a fact of life… Negotiation is a basic means of getting what you want from others. It is a back and forth communication designed to reach an agreement when you and the other side have some interests that are shared and others that are opposed.

Roger Fisher, William Ury and Bruce Patton, Getting to Yes, page 70 and 71.

Perspectives of Negotiation

Two main schools of thought exist:

1.  Negotiation is a competitive, zero-sum game where each party seeks to get a larger piece of pie at the expense of the other party. It is a distributive, or win-lose process.
2.  Negotiation is a cooperative process where each party seeks to expand the pie. It is an integrative, win-win process.

In the Orange Illustration, the chefs reached a fair compromise but a better resolution would have been if the first chef got all the flesh of the orange, and the second chef got the entire peel. Although the quantity and size of the orange remains the same, the gains would have been greater for both parties.

The primer on negotiation, Getting to Yes, champions the idea of focusing on interests, not positions. A position is a demand put forward or a desired outcome, while an interest is an underlying concern, or desire. In the Orange Illustration, both chefs insisted they needed the entire orange – that was both their respective and irreconcilable positions. Any larger slice of the orange for one chef automatically meant less for the other. This is a typical distributive, or win-lose situation. However, one chef’s interest is to use the orange to make a sauce, while the other chef’s interest is to use the orange to flavour a cake. Unpacking their interests uncovers the need for the juice and the peel rather than as much of the orange as possible. Different, but not incompatible interests. By focusing on interests, rather than positions, they could have expanded the pie, with a win-win result.  

Read more about negotiation tactics and strategies on the Mediate2go Blog.

Mediate2go: Negotiation Defined

About the Author - Negotiation Defined

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.

Mediate2go: Negotiation Defined

Mediation Services: The Benefits

Benefits of Mediation Services  

Read about the difference between mediation services and arbitration. To learn about what mediation is, or the definition of mediation, click the link.

Introduction to the benefits of mediation services.

Read about the various benefits of mediation services. Whether you want to know about the benefits of mediation in the workplace, or simply what are the benefits of mediation, this is the blog to read.

Benefits of Mediation

1. Voluntary Process 

Most mediation services are voluntary in nature. That means that if you are not comfortable with the process, you can simply tell the mediator that you would like some help or that you would like the process to end. However, if you have agreed to a resolution, that may be legally binding.

2. Faster Results

Generally speaking, it is much faster to attend a mediation process than to file a formal complaint or go through a formal legal process. Although some mediators are busy and might not be available immediately, the mediation services process might take from one afternoon to a few sessions, or a few days for very complex cases. However, it is rare for cases to take months or years to be resolved, as it is for court cases.

3. Customized Services

Although a mediator might have their own style of mediation, they are the guides of a more informal process to help you and the other party resolve your issues through communication. If you are unhappy or uncomfortable with something, just talk to the mediator. The purpose of mediation services is to resolve the issue and move on.

4. Confidential Services

Mediation services are often chosen as an ideal way of resolving a conflict in order to protect the parties. Sometimes, the dispute might be related to confidential or secret information, if made public, could hurt either or both parties. Instead of going through a court process where the public and media are involved, mediation services allow discussions to be held behind closed doors.

5. Relationships are Maintained and Restored

A major benefit of mediation services is that parties are guided through a communication process, and often gain skills to resolve their issues with the mediator’s help. This means that the parties might go through a transformative process and rekindle an once positive relationship. Through mediation, parties often better understand one another through active listening and personal change, and forgive the other party. This is much better in comparison to adversarial court processes that encourage animosity.

6. Subject Matter Experts

Although mediators do not give advice on the subject matter of the dispute because that might jeopardize their neutrality, they are often subject matters in particular areas, and might help guide a process based on the issues the parties face. Say the mediator has a background in finance, and they are helping parties resolve a financial issue, the mediator will not advise the parties, but might ask more appropriate questions to help the parties come to their own solution. Although courts are specialized in the legal aspects of disputes, mediation services might be highly specialized in a particular subject matter area, such as intellectual property, real estate, family dynamics or workplace psychology.

7. Increased Control and Certainty

Again, mediators do not make decisions as to the outcome of the mediation services process, unless they decide to terminate it. However, the mediation process is often much more flexible than a court process, which is completely controlled by the court system and a third party making the decision (the judge). Although one might imagine that a court decision would be more certain, mediation often leads to more certain decisions, given the parties have a choice in the outcome, and are less likely to resist the resolution.

8. Mutually Beneficial Mediation Services

One of the most beneficial parts of mediation services is that it benefits both parties involved, rather than a court process where there is usually a ‘winner’ and a ‘looser’. The point of mediation services is to help the parties resolve their issues in a flexible way that works for both parties. The

9. Health Benefits of Mediation Services

Conflict, and emotions related to conflict, such as anger, lead to increased stress and negative health implications. Mediation services offer a quick way to resolve issues, that are flexible and based on the needs of the parties. This makes the process itself less stressful than a mediation process. Parties can get issues resolved quickly, instead of waiting months or years for a court date.

10. Innovation and Change with Mediation Services

In addition to the health benefits of mediation, mediation services provide an opportunity for parties to stop, reflect and take action to make positive changes in their lives. Conflict can be uncomfortable. However, conflict can lead to innovation and overall, conflict can be good for business. Even if the mediation services process does not lead to innovation for business, it can help lead to innovations in relationships so parties can move on with their lives.

Best Business Ideas - Social Networking for Mediators

Best business ideas for 2015 - Social Networking for Mediators

What every mediator and conflict coach needs to know about social media networking.

1. Build bridges with social networking

Instead of simply sharing your opinion on your social networking accounts, start discussions to create engagement. You should build relationships with new colleagues and potential clients, similar to what we do on Facebook, Twitter, and our blog. . Remember, younger generations might have relationships that are completely based online. Young people are potential future clients in need. Don't be scared of competition. We are all promoting the field of mediation for the benefit of clients in need. Mediation is still underused as an alternative.

2. On the clock

Business social media is on time. To maximize your social networking efforts, launch your posts based on your audience’s usual engagement time - specific to the platform.  MediaBistro says that in general, you should post on Facebook weekdays between 6-8am, or 2-5pm, on Twitter on weekends between 1-3pm,   between 9am-11am, and on your blog Monday, Friday and Saturday at 11am. Again, this depends on your specific audience. Check on each site for information or sign up for a program such as Hootsuite.

3. Create alliances and cross-promote with new networks

Start to share with colleagues and promote with others in the field to improve reciprocation. Connect with new communities in complimentary fields. Don’t just think about your usual client base. Start to think about other communities that might benefit from your services. The more you “Retweet” or post about others, the more likely they are to do the same. Also share some private messages with them to build the relationship further. See the next section connecting in new ways.

4. Boost impact of each post

To improve search-ability and connect with new clients, use the @ symbol to share your post with particular organizations, communities and users; flagging them of your new and relevant social networking content. Use the # symbol in order to emphasize a popular theme. Search for trends on each platform and use the same words with a # symbol in front in order to get your ideas picked up by others searching for the same theme. Trend searches on Twitter are particularly useful.

5. Schedule social networking

In order to optimize your social networking outreach, make a calendar and set up reminders so that you have content ready to post, on the right platform, at the right time. This is essential to ensure a successful business social media strategy. This will also help you boost each social networking post.

6. Get noticed with your social networking ideas

People connect with powerful images, so share other user’s images or make your own. Social networking is competitive, so you need to stand out as much as you can. Be sure to add a comment with each image you post.

7. Ask for help from a social networking pro

Recruit a student from a local college or university with an interest in conflict resolution to write blogs and take care of your social networking outreach. They learn something through researching subject matter, and you have someone with the know-how, posting for your practice to improve your business. The younger generations uses social media networking as part of their daily life, so it comes naturally to them. 

8. Get the social networking app

Start using social media applications on your phone, so that when you have an idea, you can tweet about it immediately. Although you must take into account optimal timing, this is still a great way to start and respond to discussions right away. Social media networking will start to become part of your daily routine, and you will also be able to keep track of current trends in the field. For example, instead of doing nothing at a bus stop, you can post your best conflict resolution ideas.

9. Consistency over quantity

Don’t spread yourself too thin. Choose one or two social networking platforms and focus on them to maximize your Search Engine Optimization. Don’t leave inactive accounts online, or it will hurt your search engine optimization. Don’t feel bad about letting it go, if you realize you have ran out of time to give it the attention it needs. You should be posting new material each week.

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.

Top 10 Songs about Conflict - 2014

Mediate2go Blogger, Ashton Bult, has compiled a list of the top 10 songs about conflict and songs about conflict resolution in 2014. Read his description and analysis of conflict and conflict resolution in relation to each song. What songs do you think are missing from this list? Be sure to leave a comment at the end of the blog with your opinion. Thanks for reading (and listening)! Also, be sure to check out the Mediate to Go Top 10 tips on how to resolve conflict and Songs about Conflict Management Styles.

1.    ‘Shake It Off’ by Taylor Swift

A song about conflict avoidance, managing anger and moving on.

‘Shake It Off’ was one of the top hits of 2014, and an anthem towards conflict. Rather than dealing with the conflict itself however, Taylor tells her listeners to ignore the haters, and just be you.

2.    ‘Black Widow’ by Iggy Azales

A song about destructive relationships and confrontation

‘Black Widow’ deals with a nasty relationship between the artist and her partner. She is choosing to attack her ex-partner for the way he treated her. Though this song may not be a positive solution towards conflict, it defiantly involves direct conflict. We recommend using constructive conflict.

3.    ‘Don’t’ by Ed Sheeran

A song about bad relationships

This song discusses a conflict of interests and values between a man and his lover. He believes that his lover, although not serious, is faithful to him. However, she knows that he isn’t interested, and chooses to bed multiple men. With two differing opinions on the same subject, the conflict is created through intercourse.

4.    ‘I’m Not The Only One’ by Sam Smith

A song about infidelity, self-leadership and avoidance.

This song deals with infidelity. This man is married to a woman who is with another man. He has approached her about the subject, but she brushes him off multiple times. He chooses to avoid conflict, and not make an issue of this serious subject.
 

 

5.    ‘Blame’ by Calvin Harris

A song about blame, trust and self-responsibility.

This song deals with a man who had an ex-lover over to his home, after which his girlfriend became jealous and leaves him. He is regretful and wants to apologize. Instead of taking responsibility for his actions however, he passes the blame to timing. He is refusing to admit he is part of this conflict.

6.    ‘Anaconda’ by Nicki Minaj

A song about boundaries, self-confidence and self-empowerment.

This song, and especially its music video, caused a storm of conflicts about its appropriateness and sexual imagery. Parents of children were horrified that the song itself and imagery could negatively affect their children, and it glorified sex. However, Nicki Minaj maintains that beneath the surface, the lyrics themselves convey a strong message.
To me personally, the lyrics represent personal boundries, self-confidence within conflict and self-empowerment.
(WARNING: Explicit video)

7.    ‘Rather Be’ by Clean Bandit

This song is about the benefits of conflict and conflict resolution.

This song deals with a couple searching life together, yet at the same time not caring as long as they have each other. This song talks about previous conflicts, and the aftermath and peace after it has been resolved. They have moved on, and are ready to be together forever. This shows how conflict can enrich relationships.

8.    ‘The Hanging Tree’ by Jennifer Lawrence

This song is about confrontation and destructive conflict.

‘The Hanging Tree’ was a featured song in the recent movie ‘Mockingjade’, sung by Jennifer Lawrence herself. Though the song does not have conflict specifically woven into the lyrics, the song represented a war between the factions and the Capitol. It also symbolizes the effects of direct conflict, how it can damage both parties.

9.    ‘Bang Bang’ by Jessie J, Ariana Grande and Nicki Minaj

A song about multi-party conflicts and conflict dynamics.

‘Bang Bang’ deals with a three-way conflict between Jessie J, a desirable man and his high school sweetheart. Jessie J wants to steal the man away from his girlfriend, using her looks and bad girl personality as an incentive. If she achieves this, she will cause multiple conflicts between all parties involved.

10.    'All About That Bass' by Meghan Trainor

A song about confidence and self-leadership.

This song deals with conflict with oneself as well as misconception by the general public and media. This is an anthem to let go of these conflicts, and simply be comfortable with whom you are. Here are some ways to move on, take self-leadership and build your self-esteem to resolve conflict.

 

About the Blogger:

Ashton, Mediate2go Communications Blogger
Ashton Bult is a graduate of tourism studies, with a strong interest in media outreach. He spends his free time winning water polo games and reading several books a week. Ashton also acts, dances and choreographs in a Drama club in Auckland.

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.