Mediation is a process that allows parties to settle disputes outside of the traditional litigation setting. It is advantageous because disputes can be settled using creative solutions to achieve the best outcomes. It is a confidential, informal and cost-effective process for problem solving. In traditional litigation, generally, there is only one successful party which can be avoided through the mediation process. Mediation also offers opportunities for the parties to control their own process.
As mediator, my role is to help parties understand each other’s positions and wherever possible, assist them to reach favourable negotiated outcomes or assess the future risks, if settlement does not occur.
Arbitration is a formal trial-like process for privately resolving disputes. It can be based on a contractual relationship between the parties and may even be contemplated before a dispute arises. Most often, the process is binding unless the parties agree otherwise. The arbitration is conducted according to the process they agree upon. Generally, the arbitrator will be assisted by documentary evidence, oral evidence of witnesses and submissions from counsel.
Mediation / Arbitration (Med / Arb)
Med / Arb is a process that ensures the conclusive resolution of disputes. Parties first engage in mediation in an attempt to find a negotiated solution with the assistance of the mediator. In the event that the parties are unable to find a resolution through the mediation, the process shifts to arbitration. In that case, with prior agreement, the mediator becomes the arbitrator of the dispute. With the assistance of available evidence and submissions from counsel, the arbitrator, unless the parties have agreed otherwise, will make a legally binding decision to resolve the dispute. Conducting a Med/Arb requires experience and familiarity with the issues and the process.
The role of settlement counsel is unique in the litigation process. The goal of settlement counsel is to assist one particular party to develop a settlement strategy for a dispute. Settlement counsel is not a neutral party but is retained as part of a broader litigation team. The role of settlement counsel is to review the contentious issues and employ creative strategies for reaching principled resolutions that may elude the lead lawyer engaged in the traditional litigation process. By retaining settlement counsel, the rest of the litigation team is free to focus on the adversarial process while settlement counsel can explore other avenues for reaching a negotiated resolution. Depending on the nature of the dispute, settlement counsel may or may not share the settlement discussions with the rest of the litigation team.
I am available to assist people facing challenging issues or potential disputes as an objective third party in order to provide a new perspective on possible resolutions. Both lawyers and individual clients seek this assistance. The very private process can help individuals achieve “win / win” solutions in a carefully scripted manner. Often the opposite party never even knows of my engagement.