Fri 31 May 2019

6 Reasons why Mediation Should be your First Step in Resolving Conflict

Posted by Zoe.Stryd

Mediate BC just published a fun video that briefly explains the concept of mediation. If you haven’t seen it yet, watch it here.

When conflict emerges it can be hard to know where to turn to resolve it. Sometimes we want to avoid it entirely and hope it goes away on its own. Other times we want to punish the other side and bring down the hammer of justice. In the long run though, either of these approaches are prone to backfiring. Luckily, there’s another way to resolve your conflicts.

Borrowing from the themes of our Mediation: Your First Step In Resolving Conflict video, here are 6 reasons why mediation is a great first step.

1. It’s faster and less expensive than going to court. 

With mediation, you can start resolving your conflict right away. You don’t have to wait for a court date, and there are fewer procedures and red tape to navigate.

The average time to wait for a provincial court date is 5 to 9 months, depending on the length of a trial.^[1a] Waits are even longer for supreme court cases.[1b] With the possibility of multiple court appearances, it’s not uncommon for a dispute to take years to resolve in the court system. Compare that to the average duration of a civil or family mediation process which, in 2016, only took about eight weeks to resolve from first phone call to a written agreement.^[2]

The costs of going to court can add up too. Particularly if you are paying a lawyer to represent you throughout a court proceeding.

When all is said and done, don't be surprised if your total costs end up around $20,000 or higher per person. The average legal fees for a two-day trial is approximately $13,000 for family law disputes (i.e. separation & divorce) and $15,000 to $20,000 for civil litigation (most other disputes).[3] Oftentimes cases take longer than two days though, and those expenses don't include other costs associated with court, as well as the cost of time off work, travel, and potential childcare every time you will need to make an appearance in court.

Mediation, on the other hand, averages at about $1,000 to $1,500 if split evenly per person. Prices could increase significantly if lawyers, appraisers, or other people are involved; but overall, far less than court.

2. Mediation is less risky and gives you more control over the outcome 

When you go to court a judge will impose a solution on all parties. No one can say for sure what the result will be ahead of time, and you will have to live with whatever decision the judge makes. So, ultimately, it’s not up to you.

Even if you think you have good chances of winning in court, research shows people, especially those without legal representation, tend to have unrealistically optimistic expectations of the outcomes they are likely to achieve.^[4] So you might be surprised to find yourself on the losing end.

A mediator is not a judge. They help you reach consensus but don’t make decisions for you. You remain in control, and there is more creativity in finding a solution all parties can agree to.

3. Mediation is informal.

The role of mediation is to make it easier to find a solution through conversation. The style of each mediator is different, but each is focused on helping you find a resolution.

Compare that to the court system which is formal, structured, and has specific rules and procedures for filing court documents, hearings, and trials. The formalities in court can be so overwhelming that people who represent themselves (a.k.a. they don't have a lawyer) report difficulty understanding these rules and procedures so the process of court can be very stressful.

4. It’s private and confidential

Unlike court, which is public, no one needs to know you are attending mediation, and everything you say in the mediation session will stay in the session. In case you cannot come to a resolution and proceed to trial, the information revealed in mediation cannot be used as evidence later. These rules around confidentiality are strictly set out before you begin when both parties sign an Agreement to Mediate (also known as an Agreement to Participate) provided by the mediator.

5. It preserves relationships

In some cases, once your dispute is resolved, you can choose to have nothing to do with the other person and just walk away. But when that isn't possible and you are neighbors, co-parents, or colleagues at work, mediation helps heal and transform relationships. 

Mediation is less adversarial than court proceedings, which makes it less stressful, but it also makes it more likely for you to have a decent relationship moving forward. It can even improve a relationship by creating better communication and understanding between both of you. Even if you have no interest in having a good relationship now, in a few years you might feel differently.

Not to mention, mediation can preserve relationships with innocent bystanders like children. When parents are engaged in a court proceeding, it can be tremendously difficult to shield the children from the stress, heartbreak, and from emotional reactions to the situation. It can also be difficult to refrain from using the children as weapons against each other.^[5] This will always affect the children adversely and often in ways you don't expect. That's why a collaborative approach is significantly less harmful for children.

6. It lets you get back to your life

Many people report relief after mediation that the dispute is over and they can move on with their life. Especially in cases where they have been involved in a very long and stressful legal battle. Mediation is effective.

[1a] https://www.provincialcourt.bc.ca/downloads/pdf/Time%20to%20Trial%20-%20Update%20(as%20at%20March%2031%202019).pdf (We took the average Time to Trial numbers for FLA and Small Claims cases on page 2)

[1b] https://www.courts.gov.bc.ca/supreme_court/about_the_supreme_court/annual_reports/2018_SC_Annual_Report.pdf (See breakdown on page 3)

[2] https://www.mediatebc.com/sites/default/files/2016%20Mediation%20Business%20Survey%20Summary.pdf

[3] https://www.canadianlawyermag.com/staticcontent/AttachedImages/chart2.gif

[4] https://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/jf-pf/srl-pnr.html

[5] https://wiki.clicklaw.bc.ca/index.php/Resolving_Family_Law_Problems_in_Court