Failure in Mediation? – Choose Mediation Lawyers In Fort McMurray
Mediation is a process by which parties on each side of a dispute come together to attempt to reach a compromise between their respective positions, or to reach a solution that can even sometimes become a “win-win” situation for both parties and their families.
Mediation occurs on a “without prejudice” basis, meaning that any positions taken or statements made cannot be used against you in court. This encourages an open dialogue that can create the possibility of common ground, and avoid the delay associated with waiting for an outcome at trial - an outcome that can sometimes be “all or nothing”.
Mediation can be a very fruitful process, and many litigation matters reach settlement because of the process. However, several factors may doom mediation to failure, sometimes before it has begun.
Genuine Limits to the Parties’ Positions
Mediation will only be successful if there is at least some overlap with respect to the parties’ possible final positions. This overlap will only be possible if both parties are willing to compromise on certain items. If either side is simply unwilling to budge or takes too rigid a position on any given issue, the usefulness of mediation is significantly limited.
Choosing the Wrong Mediator
When mediating, it is always good for the parties to select a mediator who is non-partisan and neutral. A mediator with significant background in the practice area of law at issue will be advantageous. A mediator will often provide input about the merits of the case and the risks to each party should they proceed to a hearing in court. This input will generally hold more weight if the parties know that the mediator’s opinion is based in a wealth of relevant experience.
In other words, each party may be more willing to accept the mediator’s word on the risks of proceeding with litigation, and may be more compelled to carefully consider the merits of settling, if the mediator is reputable and has significant experience. The parties are less likely to take the mediation process as seriously, and less likely to soften their positions based on the opinions of an inexperienced mediator.
For the parties, their lawyers and the mediator to have a legitimate understanding of the strengths and merits of each party’s case, all available facts and information must be made known. If the parties have not exchanged all documents and relevant information, or if information sought by either party has not been provided, mediation is unlikely to be successful.
Each party will want to know the full case the opposing party will be able to make against him or her in court to clearly understand both the risks of his or her own case and how strong the other party’s evidence is in favour of his or her own position.
If you are dealing with an extremely hostile party, mediation may be fruitless and a waste of money. While a good mediator may be able to make a hostile or rigid party soften his or her position, some people are too angry to be convinced to see things rationally.
If the mediating parties are too mistrusting of each other, or if they simply cannot get along in a face-to-face scenario, mediation may be useless. Although mediation is a without prejudice process, parties that are too mistrusting of each other will never trust one another to be upfront and “put all of their cards on the table,” even at mediation. One party may mistrust the other to the extent that he or she does not trust the other party to even honour the confidentiality requirements associated with the mediation process.
Positions Taken are Inadequately Explained
Too often, mediation becomes a back-and-forth game of asking each party “how low” they will go, rather than genuinely engaging with the issues. A good mediation should always involve both parties explaining in detail the legal rationale for their position on each specific issue, and give some indication as to the degree of compromise that can be expected (i.e., by fully explaining the merits and risks associated with their position).
If one party can show that they bear very low legal risk in respect of a particular issue, based on the facts and existing law, the other party may be more understanding as to why that first one takes a rigid position on that issue and be better enabled to recognize when a genuine compromise is being made.
Contact Flett Manning Moore for a Lawyer in Fort McMurray About Your Options
A good Fort McMurray lawyer at our firm will guide you through your options when it comes to mediation and other dispute resolution processes, prior to resorting to litigation. He or she will also be able to identify whether mediation is a good choice at this stage in your family law dispute, in light of the relationships between the parties and the information that has been exchanged to date.
If mediation is advisable in your circumstances, an experienced lawyer will be able to recommend the right mediator for your case, and help ensure that you are getting value for the money spent on mediation, particularly as an alternate dispute resolution to court. At Flett Manning Moore, we are experienced in mediating a variety of family law issues or representing a party undergoing mediation. Call us for a consultation at 780-799-9290.