The coming into force of the new Code of Civil Procedure1 in the fall of this year will be a turning point regarding the use of private dispute prevention and resolution methods the parties. For example, the rules of procedure will now require the parties to consider making use of such methods prior to even instituting court proceedings. Among the options available is private mediation.
The purpose of mediation is to allow the parties to prevent a dispute or resolve one which has already arisen, through the intervention of a neutral third party, the mediator. The mediation process is consensual and strictly confidential.
The mediator does not render a decision and makes no rulings on questions of fact or law. He or she is rather the fulcrum of the mediation process. The mediator’s role is to clearly identify the issues at stake and to facilitate dialogue between the parties so as to promote the conclusion of a settlement. The parties to the mediation process often have the mistaken impression that it is up to the mediator to find or even impose a solution to their dispute, forgetting that they are solely responsible for the outcome of their mediation session: it is up to them to reach a settlement agreement they deem acceptable.
In order to promote productive dialogue and increase the parties’ chances of resolving their differences, it is essential that they come to their mediation session fully prepared.
Some tips for getting the most out of a private mediation session
Before coming to the mediation table, each party must engage in an exercise of reflection and analysis. Careful and thorough preparation will then result in a more productive mediation session.
Here is some key advice in that regard:
- Master the facts: Knowing the facts of the matter inside out (for example, the timeline of events, the important dates, the amounts involved, etc.) is essential, as this will allow each party to substantiate its arguments and to reason and negotiate more effectively.
- Clearly understand the applicable law: Thorough knowledge of the law applicable to the issues on which the parties disagree will allow the parties to fully appreciate the risks associated with taking the matter to court, as well as to identify and understand the strengths and weaknesses of each other’s arguments.
- Carefully consider the underlying interests of each party: In addition to mastering the facts and understanding the law, it is essential that each participant in the mediation be constantly mindful of the interests of all parties. An in-depth analysis of the dispute and its potential consequences will allow everyone to identify their short-term and long-term interests and thereby determine their needs. However, it is equally important to analyze the interests of the other parties. This will lead not only to more productive negotiations, but also to more creative proposals which have better chances of culminating in a settlement. That being the case, the parties should avoid engaging in a process such as mediation with preconceived or inflexible ideas. Such a mindset may detrimentally limit the discussions to superficial aspects of the dispute and reduce, as a result, the chances of reaching an optimal and comprehensive agreement. Mediation demands creativity and flexibility.
- Agree on a mediation protocol: As mediation is consensual, it is important to agree on a framework as well as on functional details such as confidentiality rules, the location of the sessions, the identity or remuneration of the mediator and the definition of the dispute. It is also essential to stipulate that any settlement be put in writing, in order for it to be more easily enforceable if necessary and also avoid any subsequent litigation regarding its existence or its content.
Regardless of the goals that each party may have as to the result sought to be achieved through the mediation process, it is essential to approach each session with an open mind and to actively listen to everything being said at all times.