Richard A. Buchan

Lawyer/Mediator/Arbitrator (C. Arb)

Mediation

MEDIATION can be described simply as facilitated negotiation, whether to resolve a dispute, reconcile diverging interests, or build a business relationship going forward.  The distinguishing element of this kind of negotiation process is the involvement of a neutral mediator whose role is to assist the parties in exploring and communicating effectively their respective needs and interests to achieve an optimal outcome for all involved.

Mediation differs from the formal, court litigation process in a number of important respects:

Control  Mediation keeps control of the outcome in the hands of the parties.  They alone decide whether or not they will come to an agreement; power over the outcome is not surrendered to a decision-maker such as a judge or arbitrator.

Confidentiality Unlike the public courts, mediation sessions are entirely private and not open to public observation.  Most mediators require the parties to agree that all communications exchanged within the context of mediation shall remain absolutely confidential and may not be disclosed in any subsequent proceedings.

Cost-effectiveness Civil lawsuits in the courts can be extremely expensive.  The formal procedures and requirements of strict proof in court proceedings increase substantially the amount of lawyer time required, as compared with preparing for mediation, which is much less formal.  Generally, mediations enjoy a high success ratio, and often at a fraction of the time taken for trials in court—a matter that may have taken four or five days of trial time can often be resolved with one day of mediation.

Certainty  Going to court is like rolling the dice; once a case is handed over to a judge, it is no longer in the hands of the parties.  Seldom is the outcome is absolutely certain, and despite how confident one may be at the start of the trial, the outcome can be very hard to predict.  As mediating parties ultimately control whether or not they agree to a resolution, they have certainty as to what that outcome will be.  A party that is not satisfied with a particular outcome need not agree to it.

Speed  Courts and judges are always busy.  Because of the congested court system, trials are often scheduled many months or even years after the incident giving rise to the lawsuit.  By contrast, parties mediating their issues have much greater control over how quickly the matter is dealt with, and they can decide to expedite the process according to their own schedule.  This saves not only time and money; mediating parties also save themselves much intangible stress and uncertainty that inevitably surrounds unresolved disputes.

Finality Settlements achieved through mediation are final, unless the parties later decide mutually that they wish to reopen discussions.  Settlements achieved by mediation are not subject to appeal, and it is extremely rare that they could be reopened or set aside by a court.