Mediation Lawyers to Settle Disputes in Newfoundland
The mediator is usually a lawyer, social worker, or other professional with alternative dispute resolution training and certification. The credentials of the professional will affect the type of services available. For example, a lawyer who acts as a mediator will have legal knowledge about the division of property and support payments while a social worker will have much experience with custody and access disputes and developing parenting plans. The choice of professional sought will depend on the nature of the issues in dispute although typically the issues have more legal implications than not.
The mediation process typically occurs informally yet professionally. Either party can withdraw from the process at any time and the parties can agree to return at a further date if they still have issues remaining and find the settlement approach useful.
After the mediator, date and time length committed to (e.g., half day vs full day) are determined, each party can prepare for the matter with a statement of the factual and legal issues, his or her interests and position, with any relevant legal documents, tax notice of assessments, bank statements and/or any other supporting materials.
All communications at the mediation, and the mediator's notes and records, are deemed to be without prejudice settlement discussions. If the mediation leads to a solution, a settlement agreement is prepared and the matter ends. Otherwise, the litigation can proceed for an arbitrator or the court to decide.
Types of Mediation
One distinction that can be made about mediation is whether the negotiation to be held is "rights-based" or “interest-based.” In the former, the goal is to settle what the entitlements are and in the latter the goal is to uncover and settle the parties’ underlying interests, values and concerns. There is no requirement to agree on the issues to be addressed in advance. An interest-based approach is considered most appropriate in most circumstances, however, as it opens up previously unheard communication between the parties and leads to solutions that may be creative even if they are not legally required.
The parties will need to agree in advance about whether the mediation is open or closed. Open mediation means that the process is not confidential and there may be an agreement for the mediator to prepare a report once the mediation finishes. By contrast, closed mediation requires all discussions between the parties to be confidential and the information obtained from the process cannot be used as evidence against either party, with very few exceptions (for example, where concerns arise over the welfare of a child). Additionally, in closed mediation no report is given to the lawyers or the court, and no opinion is given to anyone other than the parties themselves on the issues that have been discussed. An agreement to mediate or mediation contract will need to be signed before starting and, in some cases, the mediator requires a certificate of independent legal advice to verify that you understand the terms you are agreeing to.
The mediation experience will vary depending on whether it is counsel assisted or not as legal representation can help significantly, including levelling the field if there are differences in knowledge and abilities between the parties. A lawyer is not always present in mediation if a party thinks he or she can sufficiently represent his or her own interests and settle the dispute on their own but the likelihood of success in reaching an agreement is increased if your lawyer is present and has experience with the mediation process.
The mediator is not able to give legal advice, and the absence of legal counsel could greatly affect the terms settled. The parties seeking mediation must be of relatively equal bargaining positions to resolve the issues. Parties who feel vulnerable can discuss privately with the mediator what they need in order to feel more empowered.
How is Mediation Beneficial?
The benefits of mediation include the potential for quick, effective and low cost or no cost resolution (mediation is free through Family Justice Services for family law disputes). Nearly all studies comparing family mediation to adversarial lawyer-negotiations and litigation show that people who choose mediation are more satisfied with the process and the result. If a settlement can be reached even on some of the issues, the process is much more viable than heading straight to arbitration or court. Further, even if a settlement was not reached using mediation, the parties may obtain information from each other that is otherwise not available using other processes. Additionally, mediation is a less emotionally stressful option for parties than pursuing litigation, which is ultimately better for the parties and their families.
The opportunity for the parties to define the issues, to set the agenda, to come up with and be part of the solution is another aspect that makes mediation increasingly popular. Having the opportunity to be heard and understood helps keep the relations amicable. Because the process is voluntary, bad faith is less likely and more quickly detected. The process in mediation is inherently collaborative instead of adversarial.
The quick speed in which settlement is typically obtained in mediation is also in the interests of both parties. The court process and system can carry on for years and make parties more emotional, making them less willing to settle. The more parties spend on legal fees, the greater cost recovery they will demand from the other party or seek from the court. Early mediation can help dissolve the destructive emotions that can get in the way of reasonable settlements.
Are there Drawbacks with Mediation?
Some parties do not consider mediation because they are not aware that it exists as a dispute resolution mechanism, are unaware that free mediation is available through the court, or they lack faith in the ability of the parties to come to an agreement. Some parties believe that they will fare better in court instead of through alternate dispute resolution processes though that is not necessarily the case.
The only way to know if mediation can be successful in a particular situation is to try it. The potential upside for trying to settle in mediation is significant for the amount of time and resources spent even if the settlement is one that is not exactly what you really wanted.
Circumstances Where Mediation is Not Available
Mediation is not appropriate for everyone, particularly in cases where there has been violence or abuse. Where one party is afraid of or intimidated by his or her spouse, he or she may be too vulnerable for mediation to occur. The mediator will conduct a screening to determine if any one of the parties is too vulnerable to have reasonably equal bargaining leverage and therefore unable to negotiate freely.
Alternatives to Mediation
At any time, the issues can be resolved by informal settlement. Legal counsel may discuss the case and advise the parties to settle. Sometimes settlement comes early on in the matter and sometimes it is only after documents are exchanged and significant disclosure has been made and the parties are able to assess the case. Once lawyers are retained, the Rules of Professional Conduct preclude lawyers from dealing directly with the "opposite" client. All communications must be from one legal counsel to another. The parties are still able to speak with each other, however, and talk amongst themselves. A party could hurt his or her case, however, if speaking with the opposing party without having discussed what is to be said with their legal counsel.
Arbitration can be another alternative to mediation or a step following unsuccessful mediation. An arbitrator who is a lawyer has the same powers as a Superior Court judge except the ability to grant a divorce, which must be done in court. An arbitrator’s award is legally binding but it cannot be enforced without the court’s approval or court order mirroring the award signed on consent by the parties. Depending on the arbitration contract, a party may or may not have the ability to appeal an unfavourable decision to the court.
Finally, some parties skip over mediation and arbitration and elect the court process, which is common in high conflict situations. Courts are appealing to some as they are bound by legislation and prior case law in determining the issues and because there is the option to appeal if a decision is not satisfactory.
The Importance of Legal Advice
If you are considering mediation you should speak to a lawyer with experience in the area before seeing a mediator. It is important to know what laws are applicable and what your statutory rights and obligations are before mediation starts. It is important to obtain advice both prior to mediation (even if you do not intend to have a lawyer represent you in mediation) and afterwards, for a final review before signing documentation. Disputes can be more costly with delays, particularly as the dispute period extends over time.
When lawyers attend mediation with the parties, they tend to work together to help find solutions to problems rather than build their cases against the other party. Lawyers work from the same laws and represent a myriad of issues for the multitude of clients they represent. Understanding the options to resolve challenges is as important as the issues themselves and the strategy. At Gittens & Associates, we have experienced lawyers who can help you. For more information contact us in Newfoundland at 709-579-8424 or toll free at 1-888-592-7171. We can support you through mediation in family or civil law where needed in Newfoundland.