Debunking Myths about Mediation

By Nolan Cattell

When parties are embattled in a conflict, they often gain tunnel vision and become set on having “their day in court” as they’ve seen for others through movies, television and other media. All they want is to have a judge or person of authority declare for everyone in the room that they are right.

Mediation is a relatively new process in the eyes of the public and often gets overlooked by parties in a dispute for reasons that don’t always check out. Here are five myths about mediation that have been debunked, and why the mediation process can work for you.

Myth #1 — The Mediator will prove that I’m right and will tell us what should happen

A mediator’s role is to remain impartial and guide the parties through the process, not to advise them on what they believe is the correct solution. Although mediators may sometimes make suggestions if parties have reached an impasse, and discuss how they believe a judge or arbitrator might view their dispute, mediators make a concerted effort to mitigate power imbalances and ensure a level playing field.

Mediators do not provide legal advice, nor do they have the authority to hand down a decision should two parties agree to enter the process. In mediation, the parties are the ones in control and ultimately decide together what the outcome should be.

Myth #2 — Willingness to mediate is a sign of weakness

An offer to mediate does not equate to a lack of confidence in your position. Instead, entering the mediation process should be seen as an act of cooperation and an acknowledgement that the parties can resolve the problem by themselves in a swift manner.

Mediation is an entirely voluntary process and parties may choose to stop the mediation whenever they like. If parties are narrow-minded, inflexible, and unwilling to cooperate, a mediation is unlikely to have much impact.

Myth #3 — Mediation is pointless because I know I’m right and will win in court

While most parties who enter the judicial system believe they are clearly in the right, there are zero guarantees that an impartial judge, jury or arbitrator will see the situation from their exact same perspective.

Passing on mediation to go straight to the courts is similar to making a gamble on the cards you have without knowing what else is out there. Parties often fail to recognize having their “day in court” takes the power and control they have over the situation out of their hands and greatly increases their chances of being dealt a “win-lose” outcome they are not satisfied with.

It is exceptionally rare for a party to have the opportunity to tell their entire story in court, and judges and juries usually have to make their decisions based on limited information since they do not have the time or resources to thoroughly examine each issue. A judge is also unable to provide an apology or further explanation for why a party acted in a certain way.

Alternatively, because of its informal setting, mediation allows both parties to provide the mediator with the full picture of what has taken place and tell them exactly how they view the situation in their own words. Mediation hands control of the decision-making process over to the parties and provides them with the opportunity to come up with flexible “win-win” solutions that achieve the goals of both sides.

Myth #4 — Going to Mediation requires parties to reveal everything to each other

Although it can happen right before entering the courts, mediation is not an extension of the litigation process. Mediation is an entirely confidential process that allows the parties to express one another their own perspective and how they’ve been affected by the situation.

Everything which is discussed is to be kept private. If a case were to move forward to the courts, any evidence submitted which was first said or discovered through the mediation process is inadmissible in a court of law. Any idea of a “surprise” should have already been eliminated due to pre-trial disclosure rules. Upon conclusion of a mediation, the mediator also agrees to destroy any notes or references to the case.

Myth #5 — Mediation is a waste of time, especially if there is no settlement

This is the most common myth plaguing the practice, and it is largely a misguided one. Many parties view mediation to be a time-killer since it is typically recommended by a judge who has to handle cases earlier on the docket before getting to theirs. At this stage, the parties believe there is no chance anything will be resolved as the other side is simply too stubborn to want to discuss a resolution. The truth is if both parties enter the process willing to cooperate and act in good faith, mediation can create substantial progress.

There is no such thing as an “unsuccessful mediation”. Even if both parties seem to be miles apart, the process can help to refocus the dispute and provide a resolution that would be better than none at all. Many cases that go to mediation often settle shortly after, as parties use mediation to streamline the process and gain a better understanding of the other side’s interests.

Mediation is not the correct forum for every dispute; some cases are not meant to be settled out of court and make litigation a necessity. However, mediation should still be encouraged in any conflict, as it is a beneficial step which can go a long way towards resolving a dispute.

At the Osgoode Mediation Clinic, we specialize in providing mediation services to the surrounding Osgoode and Greater Toronto community. If you have any questions regarding these services, please feel free to reach out.