Ch. 5 Flashcards
Dispute resolution
- courts
- mediation
- arbitration
- negotiation
- restorative justice
What is mediation
- negotiation between disputing parties, assisted by a neutral party
- mediator is not empowered to impose a settlements, alters the dynamics of the negotiation and often helps shape the final settlement
Characteristics of a mediation
- voluntary
- non coercive
- assisted negotiation
- informal
- confidential
Voluntary characteristic
- no party is forced to use a mediator, more are they forced to agree to a particular settlement
Non-coercive characteristic
- the mediator does not decide for the parties, but helps them make their own decision
Assisted negotiation characteristic
- the mediators role is to be an impartial third party who helps the parties reach a fair and mutually acceptable settlement.
- mediator may provide relationship building and procedural assistance
Informal characteristic
- the proceedings of a mediation are more relaxed and informal than those or the court or an arbitration.
- no prescribed rules of procedure and few rules other than those agreed to by the parties themselves
Confidential characteristic
generally described as a confidential process
- up to the parties to jointly establish any limits
- if decided mediation should be confidential, the parties and the mediator should sign a clause to the effect
How is mediation conducted
- when conducted properly, mediation can allow all parties involved to move away from legal concepts such as fault and instead allow for people to share perceptions and experiences and a determination of each party’s actual needs and interests
How to use mediation
- both the parties and the mediator have certain responsibilities
- parties must attend, as requested, all sessions and participate in process of good faith
- mediator should remain dispassionate and avoid becoming partial to one party
- all statements and disclosures made, docs provided to mediator are confidential
Preparing for mediation
- choice to go with mediations rests with the parties
- parties must select a mediator either through efferent or directly
- agreement should be drafted, laying out critical items
What is critical for a mediations agreement
- Logistics of mediation
- Cost-sharing arrangement (usually 50/50)
- Mandate of the mediator
- Confidential or of public record
- How disclosure would operate - in advance or as required my mediator
- Use of subsequent processes if unsuccessful
- Possibility of co-mediation
- Renumeration for the mediator
Steps of a mediation
- agreeing to mediate
- understanding the problem(s)
- generating options
- reaching agreement
- implementing the agreement
What is the role of a mediator
- encourage exchanges of information
- hell parties understand each others views
- let parties know their concerns are understood
- promote a productive level of emotional expression
- layout differences in perceptions and interests
- identify and narrow issues
- help parties realistically evaluate alternatives to settlement
What is the role of a mediator (2)
- suggest that the parties take breaks when negotiations rach an impasse
- encourage flexibility and creativity
- shift focus from past-future
- shift focus from one of blame to creative exchange in parties
- hold caucuses with each disputant if there’s deadlock or problem
- propose solutions that meet the fundamental interest of all parties
What is the role of counsel in mediation
- counsel can play as active a role in a mediation as their client is willing to grant them
- determined by the parties at the protest of the mediation, whether counsel present or not
- counsel can and should act as legal advisors to their clients, both during mediation and at the completion of the process
Concerns about mediation
-some believe mediation should be mandatory, while others believed it would introduce a coercive element which is counter productive
- concern about accountability and authority to settle
What is arbitration
- utilizes an adversarial approach that’s requires a neutral party to render a decision
- developed as a binding, adjudication process
- regulated by statue, every province and territory has its own separate arbitration legislation footnote.
The characteristics of arbitration
- voluntary
- controlled
- private
- informal
- adjudication
- binding/non binding
- confidential
- adversarial
- flexible
Voluntary characteristic (arbitration)
Parties must expressly agree to arbitrate in writing, or fall within the ambit of legislation that madness arbitration in a given situation
- if parties agree, the court will generally require parties to submit the dispute to arbitration, unless found that agreement is null and void
Controlled characteristic (arbitration)
The parties and their counsel are able to control procedural aspects of the process, including the choice of natural, timing and location of the hearing, as well as who, other than the parties themselves may be present
Private characteristic (arbitration)
Arbitration being conducted in private
Informal characteristic (arbitration)
The rules of procedure are established by the adoption of existing rules, by a negotiated arbitration agreement between the parties, or by the parties and the arbitrator
Adjudicative characteristic (arbitration)
As in litigation, once a case has been presented by each side, the arbitrator issues a decision
- article 31 of the code requires an arbitration award shall be in writing
