Is there an alternative to starting a lawsuit?

Going to trial to have a judge hear evidence and decide your case may be one of the most expensive ways to resolve your dispute. Before starting a court case you may wish to consider other options, such as mediation.

What is mediation?

Mediation is a way for people to settle disputes or lawsuits outside of court. In mediation, a neutral third party – the mediator – helps the disputing parties look for a solution that works for them. Mediators are neutral third parties who can help you agree on issues. Mediators do not decide cases or impose settlements. The mediator’s role is to help the people involved in a dispute to communicate and negotiate with each other in a constructive manner, to gain a better understanding of the interests of all parties, and to find a resolution based on common understanding and mutual agreement. The purpose of mediation is not to determine who wins and who loses, but to develop creative solutions to disputes in a way that is not possible at a trial.

Why choose mediation?

There are several reasons for choosing mediation over a court hearing:

  • Parties to a dispute may choose mediation as a less expensive route to follow for dispute resolution.
  • The mediation process generally takes much less time than moving a case through standard legal channels. While a case in the hands of a lawyer or filed in court may take months or even years to resolve, a case in mediation usually achieves a resolution in a matter of hours. (Time is money, literally)
  • Mediation often leads to resolutions that are tailored to the needs of all parties. Generally, the best solution to a problem is one worked out by the people themselves.
  • Many people find mediation more satisfying than a trial because they play an active role in resolving their dispute, rather than having a solution determined by a judge.
  • The mediation process is informal and completely confidential. Parties in mediation may speak more openly than in court. Many people find mediation a more comfortable and constructive process than a trial.
  • In situations where the parties have an ongoing relationship, mediation is particularly helpful because it promotes cooperative problem solving and improved communication.
  • Mediation offers multiple and flexible possibilities for resolving a dispute and for the control the parties have over the resolution. In a case filed in court, the parties will obtain a resolution, but a resolution thrust upon the parties by the judge or jury. The result probably will leave neither party to the dispute totally happy. In mediation, on the other hand, the parties have control over the resolution, and the resolution can be unique to the dispute.

Will I be forced to attend a mediation session?

Mediation is voluntary if it happens before a court case starts. You and the other party must be willing to try to work out a solution. You must both agree to the mediation. If you do not mediate at the beginning of your civil dispute and decide to sue in court instead, you could still later participate in a mediation session. During your court case you might be required to participate in a mediation session. Mediation is mandatory in most civil court cases in Toronto, County of Essex (Windsor) and Ottawa.

How long is the mediation session?

The length of time of a mediation session, and the number of sessions required, will depend on many factors, such as:

  • Number and type of issues to be mediated
  • Amount of conflict between the parties
  • Degree of communication and cooperation among the parties.

Where is the mediation session held?

The mediation session may be held at any location that is convenient and acceptable to the parties, including the mediator’s office and the office of one of the parties or one of the lawyers.

Do we still need lawyers?

The mediator does not take the place of a lawyer. Each party is encouraged to get independent legal advice before and throughout the mediation process. It is very important for you to know about your legal rights and obligations and how the law affects your issues. Each party should review the final mediated agreement with his or her lawyer before signing. If you do not reach an agreement during mediation, you can start a court case or continue your court case.

Who attends the mediation session?

All parties should attend the mediation session. If a party is represented by a lawyer, the lawyer must also attend.

What happens during a mediation session?

Before the mediation session begins, the mediator explains the mediation process and reviews the terms of the mediation, which may be set out in a written “agreement to mediate”. Although mediation is an informal process, the mediator structures the discussion. All parties have a chance to present their side of the story, to explain what is important to them and to ask questions. The mediator will help parties to reach a fair and lasting settlement. The mediator does not take sides or make decisions for the parties. Mediators cannot give you legal advice.

Who pays for a mediation session and how much does it cost?

Parties may share the cost of a mediation session. Parties pay mediators directly for their services. A mediation session is generally less expensive than suing in court.