I just completed a survey for a colleague who is writing a paper on the growing use of mediation- arbitration.
For people with difficult, deeply-rooted disputes, this can be a very useful process. It offers them the opportunity to resolve the matter — hopefully quickly, confidentially and effectively–with someone in whom they have great confidence.
A good mediator-arbitrator is a trained, skilled and experienced professional, usually but not always a lawyer. In family law cases, we will meet first with each party separately to screen them and their case, to try to ensure that they and the subject of the dispute are good candidates for this special dispute resolution process.
We will then work hard with them to try to resolve the dispute in mediation. We will encourage them both to try to craft a solution that will likely be better for them both than the alternative, which is an arbitrated decision that neither may like. The parties will often attend this part of the process without their lawyers. The mediation will focus on what each of them needs to reach an agreement that is “good enough” for a settlement. The mediation is generally not a legally evaluative process; rather it is a focused exercise in intense problem-solving. Most people find that they are able to reach creative and satisfactory settlements.
If the mediation does not result in a settlement, the process will then change into a decision-making process. The mediator and the parties and (usually) their lawyers will meet at another time, and the case will be presented to the arbitrator much in the same way as a case in court. Each person will give his or her evidence and each lawyer will make his or her arguments, and the arbitrator will issue a written decision.
Mediation-arbitration is not for all cases. It requires the parties to have a great faith and trust in the integrity and competence of the mediator-arbitrator. The role of mediator-arbitrator can be a challenging one and the professional must remain neutral, impartial, professional and committed to a fair process at all times. But the process also allows for considerable creativity because it is a privately negotiated and provided process. There are certain requirements for the training of the arbitrator and the form of the arbitration agreement, but there is great latitude in how the arbitration process is structured, making it a flexible dispute resolution option for many.
Great post and I want to read more — any more information available about the survey results or your colleague’s paper?
Hi Noel; Lorne Wolfson is writing the paper. It is for the National Family Law Conference in Victoria in July. You should contact him to see the survey questions and results, I am sure he would share them with you.
Great Blog Hilary! Here is some food for thought about my experiences with mediation thus far. While struggling to promote my services as a wannabe family mediator, I have just recently noticed that many lawyers are unlikely to suggest mediation to their clients. I keep wondering why. Sometimes I even ask the lawyers I come in contact with, how often, if ever, they suggest mediation to their separating clients. Some of them provided a rather blunt, though perhaps refreshingly honest answer, by saying that they do not send their business away. Others simply said that it is not an option that crosses their mind and though they think some of their matrimonial files could benefit from mediation, they simply do not know how to identify these who would and what to do next. One lawyer, expressed surprise that mediation is not only for couples considering reconciliation.
I have to admit that, in spite of being an aspiring mediator; I do not have a shining record of telling my own clients to try mediation in the course of my practice as a family law lawyer. To be more exact, in the last year I recommended mediation quite successfully to one client and I made another attempt, which so far is falling flat as the client is not convinced and his wife appears uninterested.
I have done some self-analysis in this respect, as generally I am sold on the concept of mediation, so how come I do not walk my talk. It seems that I face two obstacles. Firstly, a vast majority of my clients have very poor command of the English language and my search for an OAFM certified family mediator fluent in their first language was unsuccessful. Secondly, my clients usually call me when the situation is fairly escalated (the pattern seems to be that they try to “do without a lawyer” for as long as they can) and by the time they do get to see me, they are simply not interested in “amicable resolutions” or they have lost all hope that such resolutions are possible.
There is a third reason why I end up not considering mediation with some of my clients. It has a lot to do with how they describe the other party’s behaviour. Somehow, I am not inclined to encourage mediation when one party (or both of them) displays a blatant lack of good faith, or malicious intentions in their behaviour. I now wonder if I should change it. After all, what I hear is one party’s perception of what is happening. On the other hand, clients’ perception is what matters most. In deciding whether to consider mediation, my clients are going to rely more on how they perceive the other party and his or her actions, than on my enthusiasm for the mediation process.
The reason why am thinking, and writing, about it all is purely practical. I do recognize that lawyers do not have an incentive to suggest mediation to their clients. If the clients do not come to the lawyer asking about it, they are likely never to hear about it. In practice it means that only these who do their homework and search for alternatives on their own have an opportunity to consider the option of mediation. Which makes me think that perhaps I should start thinking of mediation as a hobby and focus on honing my litigation skills.