Ch. 5

Question 1

Dispute resolution

Answer 1

• courts
• mediation
• arbitration
• negotiation
• restorative justice

Question 2

What is mediation

Answer 2

• 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

Question 3

Characteristics of a mediation

Answer 3

• voluntary
• non coercive
• assisted negotiation
• informal
• confidential

Question 4

Voluntary characteristic

Answer 4

• no party is forced to use a mediator, more are they forced to agree to a particular settlement

Question 5

Non-coercive characteristic

Answer 5

• the mediator does not decide for the parties, but helps them make their own decision

Question 6

Assisted negotiation characteristic

Answer 6

• 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

Question 7

Informal characteristic

Answer 7

• 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

Question 8

Confidential characteristic

Answer 8

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

Question 9

How is mediation conducted

Answer 9

• 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

Question 10

How to use mediation

Answer 10

• 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

Question 11

Preparing for mediation

Answer 11

• 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

Question 12

What is critical for a mediations agreement

Answer 12

1. Logistics of mediation
2. Cost-sharing arrangement (usually 50/50)
3. Mandate of the mediator
4. Confidential or of public record
5. How disclosure would operate - in advance or as required my mediator
6. Use of subsequent processes if unsuccessful
7. Possibility of co-mediation
8. Renumeration for the mediator

Question 13

Steps of a mediation

Answer 13

• agreeing to mediate
• understanding the problem(s)
• generating options
• reaching agreement
• implementing the agreement

Question 14

What is the role of a mediator

Answer 14

• 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

Question 15

What is the role of a mediator (2)

Answer 15

• 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

Question 16

What is the role of counsel in mediation

Answer 16

• 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

Question 17

Concerns about mediation

Answer 17

-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

Question 18

What is arbitration

Answer 18

• 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.

Question 19

The characteristics of arbitration

Answer 19

• voluntary
• controlled
• private
• informal
• adjudication
• binding/non binding
• confidential
• adversarial
• flexible

Question 20

Voluntary characteristic (arbitration)

Answer 20

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

Question 21

Controlled characteristic (arbitration)

Answer 21

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

Question 22

Private characteristic (arbitration)

Answer 22

Arbitration being conducted in private

Question 23

Informal characteristic (arbitration)

Answer 23

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

Question 24

Adjudicative characteristic (arbitration)

Answer 24

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

Question 25

Binding and non bandaging characteristics (arbitration)