Readings:

Noone, M. 'Mediation' Cavendish Publishing 1996 (ed. Mafarlane, J.) chapter one

First a definition :what is mediation?

Mediation is the facilitation of a negotiated agreement between two or more disputing parties, by a non-partisan third party.

'Mediation is the intervention into a dispute or negotiations by an acceptable, impartial and neutral third party who has no authoritative decision-making power to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of the issues in dispute'

Moore, C. 'The Mediation Process' Jossey Bass 2nd edition 1996

Mediation is not a monolithic process and there are many variations in both mediation process and structure, and mediator style. These are sometimes described along a spectrum running from

facilitative..................................................................to evaluative

describing the mediator as acting as something between

an 'orchestrator'.......................................................and a 'deal-maker'

Facilitative mediation sees the mediator as working to improve communication between the parties, structure a process that encourages constructive dialogue and to ensure that as far as possible the disputants succeed in 'separating the people from the problem' (Fisher & Ury, 1981).

Evaluative or rights-based mediation casts the third party as a person with important substantive expertise that will allow him or her to give the parties an authoritative opinion on the potential legal or other outcome to their dispute, if they are unable to settle. An evaluative mediator is also more likely to :

1. work with the parties in private caucus
2. focus discussions on the parties legal representatives rather than on the parties themselves
3. make concrete proposals for settlement.

Each of these models is of course a simplified stereotype. Many mediators combine both styles and approaches. However it is important to note that the model of mediation which is becoming increasingly common in court-annexed and court-connected programmes is an interests-based model, in which the mediator will not offer a legal evaluation and instead attempts to focus settlement on the satisfying of party interests.

For more information on mediator styles and approaches, please see the Introduction to Mediation Theory and Practice course, in this series.

Lawyers spend a large proportion of their time negotiating with the other side in order to settle contentious matters before trial. Some studies calculate that as many as 98% of all cases are settled before trial. So what difference does a mediation intervention make to the lawyer's existing responsibility to attempt to settle a case?

i. the impact of a third party neutral on the dynamics of settlement

Bringing a third party into the picture will inevitably alter the behaviours of the parties and the dynamics of negotiation. Regardless of the fact that the mediator will not 'decide' the matter, the parties often wish to impress the mediator with their 'reasonableness', as well as the strengths of their arguments. Where there is tension between legal representatives which has impeded the negotiation process, the intervention of a third party may alter the presentation of the lawyer's negotiating behaviour also.

ii. the timing of mediation

Referral to mediation in the Ontario General Division pilot programs takes place after the filing of the first statement of defence. The mediation meeting itself takes generally place before discovery. This is earlier than many lawyers would consider entering into settlement negotiations, especially negotiations which are focused on legal rights and positions (statistics indicate that most cases in which action is joined are settled between pre-trial and trial - 'on the courtroom steps').

A mediation intervention may take place at any time before trial commences. However most mediators would suggest that the earlier the intervention the less entrenched the positions of the parties will be. In addition it is often easier to settle when legal costs are still relatively low.

iii. the emphasis placed in mediation on client participation

Facilitative mediation, in particular, encourages the parties themselves as well as their legal representatives to participate directly in the discussions. Whatever the mediation model, clients will be expected to play some active role in the process. The Ontario General Division Early Mediation Programs require the attendance of the clients at mediation before the process can begin. It is not enough for counsel to attend on the client's behalf, as might be expected for a conventional lawyer-to-lawyer negotiation.

iv. a focus on interests, not rights

The interests-based approach of the Ontario Early Mediation Programs in Toronto and Ottawa (and many comparable US programs such as operating in the courts of Florida, California and North Carolina), allows for the development of criteria for settlement other than legal standards, often producing a wider range of potential outcomes. The mediation of a matter that has been filed in court inevitably takes place, as do conventional negotiations, 'in the shadow of the law'. However, depending on the mediator's style and approach (above), mediation will generally be as or more concerned with party needs and motivations as with their 'rights'.

. At this point, you are recommended to listen to the first section of the audiotape enclosed with your course package. Michael Silver, a mediator formerly with the Toronto General Division ADR Centre, explains what you might expect as a legal representative going into a mediation with a client, as well as how to assess the suitability of your dispute for mediation (see also below).

Please return to Discussion Room One, 'Mediation : a Brief Review'before proceeding further with the class notes. This is the forum for you to examine and discuss this first topic, as well as Michael Silver's advice to counsel participating in mediation.