Mediation is a dispute resolution process conflicting parties may use to reach a settlement with the help of just one impartial third party. Mediation is a confidential and voluntary process, which leaves the outcome in the control of the parties, not the courts. Where an agreement is reached it can be reduced to a written contract. Mediation is nearly always “without prejudice,” meaning that what was said in mediation cannot later be used against either party in court.
A mediator does not take a position or give advice. They will help the parties explore their positions to reveal underlying interests, ensure the parties communicate respectfully and effectively, and help come up with solutions that the parties may not have explored yet.
If parties cannot reach an agreement with the support of a mediator, they may choose arbitration. An arbitrator is also an impartial third party, but similar to a judge, will impose a decision after weighing the factors presented by each side in the dispute. The arbitrator’s decision is legally binding but may be appealed to the courts in some situations.
While arbitration can be similar to litigation, it is often considerably less expensive and significantly faster.
What happens if an agreement cannot be reached?
If an agreement cannot be reached through mediation, the parties may choose to proceed to arbitration or litigation. If an agreement cannot be reached through arbitration, parties will most often proceed to litigation.
Who should consider mediation or arbitration?
Mediation is a strong option for parties who:
- Are confident they can work through the process without additional legal support
- Are interested in a simpler and potentially less expensive process
- Would like to maintain greater privacy
Arbitration is a strong option for parties who:
- Cannot come to a collaborative or negotiated agreement
- Desire a simpler and less costly process than litigation
- Maintain more privacy
Bruyer & Mackay has trained mediators and arbitrators who can help you navigate all or part of your settlement agreement.