By Hai Tran
As a student working at the Osgoode Mediation Clinic and now a trained and certified mediator, I’m a big advocate for the mediation process. As many might already know, mediation services can be a great alternative for solving disputes and improving access to justice (and if you didn’t know, here is a great blog post that talks about the benefits of mediations: https://winklerinstitute.ca/mediating-online-the-benefits-of-settling-your-dispute-online/
With that being said, I personally know a lot of people who are still skeptical about using mediation and some skeptics might even devalue the role of a mediator. In this post, I want to address the concerns I hear most often.
Concern 1: Mediators aren’t lawyers, so how can they help me with my legal dispute?
Although not all mediators know the law, knowing the law is of little use in a mediation. Oftentimes, people forget that mediators are not there to tell parties their chances of winning in court, nor are they there to tell you what the law is. Mediation is a chance for parties to discuss their problems and work together to come up with a resolution that works for both parties and mediators are there to help facilitate this process. While many people might instinctively believe that the legal system is the best way to handle their conflicts, this is actually often not the case. Going to trial is expensive, lengthy, complex and results are typically unpredictable. It’s time we stop thinking about our complex problems as a zero-sum game, where there has to be a winner or loser, and that it can only be solved according to the law. If two parties can negotiate a settlement that they’re both happy with, then what the law specifies might actually be of little significance.
Concern 2: Mediations don’t work because it isn’t legally binding.
Although settlements arising from mediations aren’t necessarily legally binding (though they can be!), it doesn’t mean that parties will be less likely to follow through with their agreements. Remember, mediation settlements are negotiated by both parties and ideally, the terms of the settlement should make everyone happy. Therefore, if the settlement is beneficial to both sides of the party, parties might actually be more incentivized to fulfill their end of the settlement.
Concern 3: A mediation won’t work for me because the other side is unreasonable or unwilling to go into the mediation.
Anger and distrust are emotions that often arise from disputes so it is understandable that most parties would feel that the other party is being unreasonable or assume that they are unwilling to go into a mediation. However, it is usually the mediator that will call up the other side and try to persuade them to come to the mediation. Mediators are trained to de-escalate conflicts and high emotions and once a mediator explains all the benefits of mediation, there’s little reason why someone wouldn’t want to come in for a mediation.
Overall, these are some of the top reasons why most people are reluctant to try mediation but as you can see, these concerns shouldn’t deter you away from trying mediation. If you have any questions or further concerns regarding our mediation services, please feel free to reach out and we will be happy to address them!