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As I wrote in my first article, conflict is a fact of life. Mediation is an excellent means to deal with conflict.

The good thing about mediation is that it often permits warring parties  to reach a more satisfactory solution than the legal system can provide. In a real sense, the parties have control over the process (because it is voluntary); In addition, a just solution can be reached in a way shorter time frame than the legal system; there is room for creative solutions that take into account not only how the parties have framed their dispute but also other issues that are often simmering just below the surface; the entire process is also confidential, meaning that the parties can resolve their differences in private, as opposed to the Court system where you have to “wash your dirty linen in public”. Finally, the process of mediation is voluntary. If the parties fail to solve their differences, they conserve all their legal rights and recourses and can go back to court at any time.

The bad thing about mediation is that it is very hard and often emotionally taxing. The role of the mediator is difficult because it is not the role of the mediator to “solve” the problem for the parties. Solving a problem is the role of an arbitrator, who hears the parties and renders a binding decision, like a Judge. In mediation the entire mindset is different. In a mediation, there are often complex emotional issues at play. The mediator must be able to help the parties realize what the real issues separating them truly are. For example, are there relationship issues? Issues of principle? Factual problems?  (meaning that each party is unaware of some factual element that  if were known might resolve the problem), or legal constraints. Identifying these issues in a constructive manner and “getting to yes” is not easy.

I say this is the “bad” aspect about mediation, the fact it is not a binding process, but when you think about it, it’s not really that bad. The reality is that the mediator must use his skill set to deal with the emotions at play, and most importantly to identify for each of the parties what are the real interests that must be resolved. He must help the parties find a solution that they want to find. This is not a simple process. It takes a structured and psychological approach that moves the parties away from any initial emotional response and maybe away from strict legality, to a more structured and reasoned approach. It takes time, skill and commitment,  both on the part of the mediator, as well as the parties and their legal counsel, which is very different than the pure legal approach and pure judging function.

The potentially ugly thing about mediation has nothing to do with the process itself but is another reality of life. Like anything other process, including the judicial process, the mediation process can be misused and abused. For example, parties can go into the mediation process with the idea that their job is to convince the mediator, to pressure the opposing party, to act as a quasi-judge and prosecute the case on behalf of one side or the other. The mediation becomes another forum for legal discovery or a forum where one party tries to abuse the other emotionally or psychologically.  In these circumstances, the role of the mediator is not to judge, but it is to make sure that  the process does not devolve into a circus that does more harm than good.

But make no mistake, the process, if conducted well, can lead to good results, and there are techniques to help the parties achieve success. As a certified mediator for civil, commercial and labour matters, I would be pleased to serve if ever the occasion arises.