First published in Up-Date Magazine, May 2011 issue
Written by Shireen Sondhi, Stitt Feld Handy Group
When should you go to mediation?
The short answer is that mediation can be conducted at any stage of the dispute resolution process. However, there are many different factors that can help you to determine when it is most beneficial.
Ideally, the best time to consider alternative methods of dispute resolution is before a dispute arises. You may, for example consider including a dispute resolution clause in all of your contracts that provide for certain processes to be followed before resorting to litigation. These types of clauses can be included in both internal contracts with employees and external contracts with suppliers, service providers, other businesses, etc.
As an organization, you may choose to design an internal conflict resolution system. The extent of the system will depend on a number of factors, including the size of your organization, the time frame available to resolve disputes, confidentiality requirements and the types and number of disputes your organization faces. Any size organization can have a dispute resolution system. It can be as small as a single individual or large as a whole department.
An organization considering implementing a conflict resolution system should think about why they want the system and what they want it to accomplish. Some common organizational goals include:
• To reduce time and costs
• Improve or maintain the relationship
• Achieve a satisfactory outcome
• Deal with emotions
• Avoid future disputes
A conflict resolution system can include many different types of processes – training, negotiation, mediation, arbitration, neutral evaluation, etc. and should meet the specific needs of your organization. Once you have determined your objectives, there are many experts in the field of ADR who can assist in creating a conflict resolution system that best fits your organization’s corporate culture.
If, however, you are faced with an existing dispute, when you go to mediation depends on a number of factors, such as whether there is a court proceeding.
If you are involved in a court proceeding, your case may be subject to mandatory mediation requirements. In Toronto, Ottawa and Windsor, the vast majority of all civil cases are subject to mandatory mediation. Under the Rules of Civil Procedure, these mediations must be conducted within 180 days of filing the defence.
If you are not subject to mandatory mediation, you may have more flexibility as to when to mediate, given that both parties consent to the mediation. If one of your objectives to mediate is to save money, you may want to consider conducting the mediation before the discovery stage since that is where most legal costs are incurred. You may be more hesitant to settle if you have invested a large amount of time or money in the dispute up to that point. You may also become more grounded in your position and less willing to compromise if you are facing mounting legal costs.
However, if you are hesitant to settle before finding out the strengths and weaknesses of your opponent, you may want to wait until after the discovery process. Through the discovery process, you may find out that you underestimated their position and/or overestimated your position, which may encourage you to settle quickly. They also may have underestimated your position and/or overestimated their position, in which case it will become easier for you to encourage them to settle.
If your dispute has not reached the level of litigation, you may be required to attend mediation by statute or contract clause. The statute or contract clause may provide some guidance as to when to commence the mediation. If you are not bound by statute or contract, mediation can be conducted as soon as both parties agree to the process. Mediation has several advantages and mediating as soon as possible can allow you to get the most out of these benefits. For example, mediation can:
• Allow for creative solutions that are not available in the court system
• Set the groundwork for future settlement
• Reduce cost
• Reduce time spent involved in the dispute
So the answer to the question, “When should I mediate?”, is not so straightforward. However, in deciding when to mediate, it is important to look at your objectives and expectations and to start thinking about dispute resolution as early as possible.