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Creative Dispute Resolution Through Mediation

A method for finding more appropriate solutions to conflicts than court order.

As one who works full-time in dispute resolution, I know the benefits and detriments of our judicial system. This system can work well for those who can not resolve a dispute themselves, and need to have a reasoned, objectively-based decision imposed on them. For many, however, the court system does not provide the best resolution possible. It is adversarial, which is contrary to our nature. It is time-consuming, with a court case taking at least one year to reach trial. It is complicated. Each step has its own set of procedures and forms. An unresolved dispute weighs on the parties' minds, draining their energy, and adding to their stress. In addition, parties to a legal dispute are well advised to retain counsel, which can be financially crippling. Many who work in the court system speak legalese, a variant of English understood only by those who work within the system.

For Christians, mediation is often a preferable way to resolve disputes.

Many lawyers, counsellors, pastors, and business people know that the court system, while necessary and worthwhile, may not be the best way to resolve a dispute, especially if there is a need/wish to maintain a relationship between the parties after resolution. Many are turning to Alternative Dispute Resolution for quicker, cheaper, and more satisfying resolutions. The most well known such venue is mediation.

For Christians, mediation is often a preferable way to resolve disputes. It allows the parties to speak for themselves, and to be heard by the other(s). The environment created by the mediator is one that is safe, and where the parties can be creative, able to craft a 'win win' solution.

If one of the parties to mediation is not a Christian, the process can also provide a way to demonstrate Christian value-based negotiations, and to demonstrate a willingness to solve a problem in a way that meets the needs/interests underlying the dispute.

Mediation is best defined as a voluntary process where the parties to a dispute meet with a trained, impartial third party to work together to resolve the dispute. Although this may seem straightforward, there are many components to this process.

First, the parties must all agree that mediation is an appropriate forum within which to resolve the outstanding issues.

Second, it is also crucial to remember that mediation is a voluntary process. Therefore, at any time, any party can end the mediation. It is not necessary for them to provide a reason for terminating to the other parties, or to the mediator. In addition, if the mediator feels that the mediation is not progressing, or that one party is being prejudiced by the process, he or she may terminate the process.

For example, I conducted a family law mediation where a husband was not paying any support to the wife, which she sorely needed. She had genuinely committed to mediation. The husband cancelled a number of scheduled mediation meetings, would not agree to anything at the meetings that did occur, and, in essence, used this process to delay his payment obligation. This put the wife in serious financial straits. I terminated the mediation, explaining to the parties that I didn't feel the process was working for them. I encouraged the wife to return to her lawyer, and to proceed through traditional legal avenues to address her issues.

Often, parties agree to utilize the services of a mediator before they have a good understanding of the process. It is thus up to the mediator to meet with each party to educate them about the process, and the options available to him/her within the mediation process itself. During this initial meeting, the mediator will also assess whether the case is one that is appropriate for them to mediate. For example, a mediator who is also trained as a social worker may be appropriate to mediate parenting plans. He/she may not, however, be appropriate to mediate a share-holder dispute, or a complicated estate matter.

In addition, the mediator must get to know each of the parties to properly prepare for the mediation. Part of the mediator's job is to learn of the imbalances in negotiating power within the case, and to balance these as much as possible. In some cases, this will not be possible, and the mediator should decline to take on the case. For example, if a recently separated couple attend for mediation, and the mediator learns that one party has been physically and emotionally abusive, to the extent that the other party can not discuss matters with them without fear of reprisal, mediation is probably not appropriate. If, however, one party is trained in finance and the other not, the imbalance of power in financial negotiations can be overcome by educating both parties as they go through the process.

When it is determined that mediation is appropriate and preferable to the parties, the mediator will schedule meeting(s) of all the parties to begin to work through the process. This is where the hard work really begins.

Mediation is founded upon interest-based negotiations. This means that the parties, with the help of the mediator, must work together to reveal the interests which lie beneath the legal positions they present. The parties are also encouraged to listen to and understand the other's interests.

… as the parties are the ones who have crafted the solution, it is much more likely to be binding, and adhered to over time.

The parties are then encouraged to generate a number of options for resolution. All options are to be listed without comment on their practicality or validity. This can be very difficult for parties, as we all evaluate ideas as they are presented. If opinions are evaluated as each one is presented, though, parties are less likely to continue to present options. Which, even if not of value, may stimulate other problem-solving options in another's mind.

After all the options are generated, they are systematically evaluated, and a solution crafted that will best meet the needs and interests of the parties. This solution will likely be far more creative than a court order, as it is tailored to the individual interests of the unique parties. In addition, as the parties are the ones who have crafted the solution, it is much more likely to be binding, and adhered to over time.

An example may help. If Mr. X has been terminated from his employment of 20 years, he may seek redress for wrongful dismissal. His legal position would be that he was dismissed from his lifelong career without any legal basis. The employer's legal position would be that Mr. X was not performing satisfactorily, and had to be terminated to avoid further business losses.

If this matter were litigated through the court system, a presiding justice would likely determine whether there was any cause in law for the dismissal. If no legal cause were found, Mr. X would be awarded damages/money equivalent to the salary he would have earned during the time that it would reasonably have taken him to find suitable alternate work. This would not meet either of the real interests of the parties, nor probably allow for any continued goodwill between them.

In contrast, the following may unfold through the mediation process. Mr. X was planning to retire in 14 months, but hadn't said anything to the employer for fear of being 'packaged out' before he could collect his full pension. In addition, his wife is ill, and the company medical plan is the only way that they can afford to continue her treatment. Mr. X also feels that, because he was fired, his lengthy service is not valued. The employer reveals that they were unaware of Mr. X's need for medical assistance, or of his feelings of not being valued. In fact, until the last few months of his employment (before Ms. X got sick) Mr. X was on of the best employees the company had ever had.

The parties would then be able to generate options to resolve the problem presented. In the end, the parties will come to a resolution that best meets their interests. In the above example, the solution may be for Mr. X, rather than be dismissed, to take a leave of absence from the employer until such time as he is able to receive his full pension. He would then be eligible for the extended health care coverage which he and Ms. X need. He would also not feel under-valued as the cessation of work is a leave which leads to retirement, not a termination.

This also meets the interests of the employer as they can continue business without the losses they feared if Mr. X continued to actively work for them. When Mr. X is eligible to receive his full pension, he can retire, with all the praise and celebration that would be planned for any employee of over 20 years service.

Obviously, mediation in the above example provides a much more satisfactory resolution for all parties. It satisfies their interests, and achieves a fair, non-adversarial process.

Valerie Hazlett Parker, a lawyer, mediator and collaborative lawyer practising in Oshawa, Ontario, is also a Deputy Judge, Superior Court of Justice, Small Claims Court.

Originally published in BusinessLife, Summer 2006.




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