17. Why Mediation is better than Litigation in many disputes?

Litigation or a legal dispute involving two or more private parties in common law countries like Canada, India, USA and England are dealt with by court actions in an adversarial environment. Many of these disputes involving business issues and family separations can be resolved more effectively through mediation which can cost less and can be done more quickly than a court action.

The litigation process is comprised of two opposing parties who will each take on their opponent with the help of their respective lawyer, and battle through the process one step at a time procedurally to reach a conclusion. They will go through well defined rules of practice which will guide them in the due process until they reach the final stage of trial in which the judge will conclude the matter with a binding judgment. These procedural steps include statement of claim, defence, disclosure of documents and examinations of discovery of each party, pre-trial hearing and then the trial itself.

In litigated proceedings, at the final stage of the trial, the evidence well presented with a well regulated regime in which the witnesses who saw and heard the event first hand will present the evidence along with the documents to reconstruct the disputed event and legal arguments made by lawyers will be used by each party to show how the law and the evidence presented should result in the decision of the court that favours the respective litigant.

This elaborate process is well entrenched in all law abiding societies and require well trained lawyers and judges to find a solution which is "just", but it becomes prohibitively expensive for most citizens even in rich countries to go through such trials. A dispute involving more than CAD$.10,000.00 and outside the jurisdiction of the Small Claims Court, can often end up costing CAD$.5,000.00 to CAD$.25,000.00 on average to find a conclusion and it can cost more than that.

When one’s opponent has more resources, the outcome or a settlement is more likely to depend on who has stronger financial resources, rather than the legal merits of the case. The procedural steps including the motions at every stage of the proceedings can limit the rights of the financially weaker litigant. In the court room the lawyers will not talk about the financial ability of his client and the judge will not address that issue. The legal-judicial system in that sense has become very sophisticated but self serving. The litigating lawyers have a financial interest in how long the proceedings take and what fees they can earn from the litigation.

Mediation does provide an alternative to litigation and it is a much cheaper alterniative. It requires the consent of the two parties and appointment of a neutral and hopefully a knowledgeable person who will study the dispute and mediate the resolution of the problem. Mediation as a method of finding a solution is at an early stage of development and there are no set formats for the way it is conducted.

Alternate Dispute Resolution has entered the arena of litigation in the recent years and it can be used by the parties at any stage of the proceedings commenced in court. ADR permits finding a resolution by asking the parties to come together and evaluate the facts in the light of the law and finding a solution agreeable to both parties. We are going through a transition where the legal culture is changing to recognize that mediated solution can be a win win situation for both parties. Decision to mediate can cut short the process and the lawyer’s fees. A lawyer willing to initiate the mediation shorten the litigation needs to think about merits of the case and his pocket book. Lawyers trained in the adversarial method right from the law school do not find it easy to submit to the method of finding a copromised solution. It takes moral courage for the lawyer to say "My learned friend, you may be right".

Whereas the legal resolution requires framing the question in a narrow legal point of view and seeking out the cause of action, the Mediation process permits the parties to look for resolution without necessarily defining the issues from the legal perspective. The primary aim in mediation is to find a resolution and not necessarily a legally just conclusion.

One of the key reasons behind a lot of litigated disputes is the underlying disappointment in the relationship. Take for example a business relationship. The supplier constantly gets his goods delivered after delay. The purchaser may accept the delay a few times but he gets tired of the vendor not changing his style. He commences an action for breach of contract. When this issue is litigated the style of the vendor would not be discussed at all. The trial process will concentrate on the breach of contract as a cause of action and the damages as a remedy. On the other hand Mediation permits the parties to express their disappointment along with finding a resolution other than just damages in a business relationship.

Mediation is particularly suited to family disputes where the emotions and expectations are high. The adversarial legal process is often used in family cases to express disappointment, if not punishment, for the loss of expectation of the spouses in a filed marriage. Mediation not only permits the expression of disappointment needed to terminate the relationship, but also find the terms of separation, access, division of assets etc. without going through the expensive process of finding answers at the hourly rate of the lawyers which can run into CAD$.250.00 to CAD$.300.00 per hour. When you want to pour your heart out the clock is ticking.

The first step in a successful mediation is finding a good mediator with the consent of both parties. A good mediator need not have all the knowledge of the law, but it is certainly a very big advantage to have that background of the law in which parties are litigating, because if the mediation fails the issue will go to trial. The mediator can nudge the parties forward towards a resolution by pointing out what the court will say if the matter went to trial.

In a family case the knowledge of the culture can be very vital. Understanding the culture helps to understand the differences between the parties; including the role of husband and the wife in the family and that of the in laws and issues that each considers important to them. Separating spouses will in some cases lean towards religious guidelines in the process of separation and see family issues as a moral duty even if the religious traditions are not recognized in the law.

Mediation does not require formal presentation of the law and the facts, but where the process of mediation is done in a situation where no action has been commenced it is extremely important for the parties to define what they want the mediator to resolve. It is like a ‘retainer’ of the mediator.

Should the lawyers of the parties be present in mediation? In my opinion it is more appropriate for the lawyers to be present in arbitration than in mediation. Arbitration is conducted more along the lines of a trial without a court and the objective in mediation is to find a resolution without the encumbrances of provable facts and the rigid framework of the law. The absence of the lawyers not only reduces the costs of the parties but also permits the mediator to pinpoint the issues and a resolution without detailed and the biased point of view that a lawyer presents to protect his client. In and ADR lawyers will need to be present.

The issues discussed should be kept confidential and if the parties cannot agree or abide by the decision of the mediator, the issues disclosed should remain confidential and not disclosed to the court. It is advisable to cover this in the retainer of the mediator. More recent decisions of the court confirm this view and will not allow facts disclosed in mediation to be brought in the court. To do otherwise would restrain the mediator and the participants from disclosing facts necessary to achieve the resolution.

The conclusion of the mediator should be documented and preferably in the form of an agreement which should in my view be reviewed by the lawyer of each party. The advantage of the lawyer of each party seeing it, is to have the seal of approval of lawyers in the legal system confirming their consent to the conclusion; and when the agreement is signed it becomes an enforceable contract between the parties.

Major advantages of mediation are the saving of time and costs. Presenting the facts in one meeting by each side together with the presentation of the documents to the mediator is far cheaper than the formal process of the affidavit of documents and the examinations of discovery. Court schedules are usually very busy and it is difficult to find a date for the trial. It is usually many months before the conclusion of the pleadings that you can set a date for trial. Mediation can be set up relatively easily and expeditiously.

The drawback of current ethics of the legal system is that the lawyers and the litigants are not accustomed to mediation as a method of resolution. When the litigant leaves it to the lawyer to assist him, the lawyer himself is often not confident that mediation will work.

Most lawyers have not trained and worked with mediation. In the courts and the Law Schools the procedures practiced are those akin to trial and not the mediation.

ADR or the Alternate Dispute Resolution in court procedures and mediation are on the rise and will likely become common methods of resolving disputes.