Mediation
Services Conflict is an inherent part of human
existence. From the beginning of recorded history we
have records of conflict - between spouses, workers,
community groups and nations. Generally, our significant
conflicts find themselves being managed by the legal
system. The legal system is adjudicative and adversarial.
It awards victory to one side and defeat to the other.
The winner will receive the remedy (or a part of the
remedy) they ask for, while the losers will receive
nothing at all. Except in limited cases, the adjudicative
system produces winners and losers.
This "win-lose" paradigm, has become part
of the "standard philosophical map" of lawyers.
Legal training limits the type of data that will become
part of the lawyer's philosophic map. The client's narrative
of the dispute is transformed into legal nomenclature
and processed according to legal rules and conventions.
This filtering process narrows the dispute to fit within
the adjudicative system.
The adjudicative system is characterized by formal
equality - it ensures procedural fairness and uniformity
to all who come within it. It seeks to achieve procedural
consistency. Its public nature affords protection against
procedural or substantive misconduct. It is formal in
the sense that the Court imposes rules of conduct upon
the parties and the proceedings. Often the disputants
do not participate directly as matters are handled primarily
by legal counsel.
It is in response to the excessive formalism of the
adjudicative model that the phenomenon of alternate
dispute resolution has arisen. Alternative dispute resolution
(ADR) describes conflict resolution processes that are
an alternative to civil litigation.
One of the most popular forms of ADR is mediation.
Mediation is a process of facilitated negotiation with
the assistance of a neutral third party. The process
is informal and private. The key characteristic of mediation,
as opposed to adjudication or other forms of ADR, is
that the mediator is not a decision maker and has no
authority to impose an outcome upon the parties against
their will. The role of a mediator is often confused
with an arbitrator or judge, who is responsible for
rendering a decision. In adjudication (or arbitration),
the third party is presented with arguments and evidence
on the basis of rights or entitlements claimed by each
of the parties. The judge or arbitrator decides who
has the strongest claim. In contrast to this, in mediation,
the mediator has no authority to impose a solution.
This opens the door to a wider consideration of issues
- the parties' interests and needs can also be discussed.
Mediation emphasizes the role of the parties themselves
in reaching their own agreed solution. The solutions,
if found, come from the parties themselves with the
assistance of the mediator. It is true that one or all
of the parties may agree to a settlement, not because
it is their first choice, but because the alternatives
- going to court, for example - look worse.
A successful mediation requires preparation in advance
of the mediation session itself. In preparing for a
mediation, the mediator familiarizes himself with who
the parties are, their backgrounds, the general nature
of the conflict and how best to structure a process
that will be useful and comfortable for the parties.
This involves the following steps:
- confirming that the parties wish to mediate
- assessing the matter to ensure that the mediation
is suitable
- sending the parties a copy of the mediation agreement
that they will be asked to sign
- inviting brief written summaries from the parties
- making the necessary physical arrangements (place,
refreshments, room preparation)
By agreeing upon how the mediation will proceed, the
parties will have achieved preliminary agreement. More
importantly, they will have established a mutual commitment
to continue with the mediation process.
I am pleased to offer my services as a mediator for
all types of conflict. My graduate studies in ADR have
provided me with a strong theoretical background for
the delivery of ADR services in the Collingwood area.
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