Try mediation over litigation: what have you got to lose?

There are times in life when we feel we have been wronged, either as individuals, as businesses or institutions, or as an organization.

We are angry and we want to make the person or organization that has upset us takes responsibility for hurting us and makes retribution.

The first thing we think of when we consult legal advice is that we want to sue the offending party. We are ready to go to court.

Two decades of legal practice has shown me that litigation is not necessarily the best way to solve issues.

While the aggrieved party may score a huge financial or emotional gain, they may also find that the process is costly, prolonged, and extremely stressful. In cases where the wronged person needs to remain in some form of contact with the other person or organization, as in a current or former spouse or employer, for example, it also makes amiable, civilized conversation difficult to resume when the process is over.

When I suggest mediation, I am usually asked, “why?” And my answer inevitably is: “Why not? What have you got to lose?”

That’s because if you opt to go through the mediation process and the issue just cannot be resolved, you still have the option to litigate.

The mediation process is much less stressful than the litigation process for a number of reasons, and those reasons contribute to its often successful end result.  For example, when you agree to mediation, you can leave the process at any time for any reason. You are not bound to see it through to the end.

Furthermore, at no time during the process can anyone impose anything on you. Any agreements made need to be mutually acceptable, without any kind of coercion.

When you start with this level playing field, it is much easier for opponents to work together and reach more mutually acceptable agreements.

Unlike court actions, mediation is also a totally confidential matter as a general rule. Discussions that take place around a mediation table are generally not permissible as evidence in court at a later date, should things not work out.

The mediator is not on anyone’s side and instead works to ensure that all parties involved in a dispute come to a voluntary agreement and are not intimidated or bullied in any way to accept a solution that they find disagreeable.

In New Brunswick, mediation is increasingly being used as a way to solve any dispute whether it is personal, business  or a family dispute.

​If the mediation process fails, both parties still have the option to retain a lawyer and pursue the matter in court.
​
When seeking the services of a mediator, it is a good idea to find one who is experienced and has had special training in that field. For example, I hold a Master of Laws in civil litigation and dispute resolution from Osgoode Hall Law School, York University and am fully trained in mediation and negotiation.
​

Danie Roy, a bilingual lawyer and respected and experienced legal mediator and workplace investigator.  She has been providing mediation and legal services to individuals, businesses, and organizations in Moncton, Dieppe, New Brunswick and Nova Scotia for more than 20 years. Contact Danie to discuss your issue. Email: danie@jdrlawyers.ca, phone: 506-875-1097. Her headquarters are at 890 rue Main Street, Moncton, Suite 300.