Third Party Help
If you need some more help to come to a resolution, there are options to hire a neutral third party.
Mediation is an assisted negotiation. The parties in mediation negotiate their own resolution to the dispute with the help of the mediator, who is trained in conflict management. A mediator does not decide the matter for the parties. Rather, a mediator helps parties negotiate their own agreement more effectively by:
- Establishing the ground rules for the discussion
- Helping parties identify common ground
- Avoiding irrelevant or unproductive discussions
- Keeping the parties focused on the issues
- Moving the parties from fixed positions
- Helping the parties to listen to each other and to understand the other’s perspective
- Dealing with power imbalances
- Helping the parties find a resolution that meets their interests
When cases go to trial or arbitration, usually one person wins and one person loses. In mediation, however, the goal is to find a solution that best meets the needs of everyone involved.
Mediation is usually kept confidential. However, this does not follow automatically simply by entering into mediation. Rather, it is up to the parties to determine limits on sharing information as to what was said in mediation. If it is important that the mediation remain confidential you should seek a written agreement requiring confidentiality.
If a settlement is reached at mediation it is put in writing and becomes a binding contract.
The BC Mediator Roster Society operates a mediation consultation program, which is designed to help answer your questions about the process. The mediator will help you decide if mediation is suitable to resolve your dispute and answer all your questions about the process, including how much it will likely cost.
A neutral evaluation is a process in which parties obtain a non-binding, independent evaluation of their case from a neutral third party, jointly selected by the parties. Depending on the nature of the dispute, the neutral third party could be an expert in a certain field, a lawyer experienced in the type of case, or a retired judge. The evaluation could also be made by a panel of two or three persons.
The opinion or assessment of a neutral legal professional is often persuasive enough to convince the parties to adopt it as their settlement. You may want to talk to a lawyer about this process, and find out how you can find the right person to give you an unbiased opinion about your case.
A neutral evaluation can be seen as lying between mediation and arbitration. Unlike mediation, a neutral evaluator will express an opinion on the merits of the case. However, unlike an arbitrator (or a judge), that opinion will not bind the parties.
When a dispute is submitted to arbitration, the arbitrator:
- Considers and assesses the evidence presented to them by the parties
- May call their own witnesses and retain experts
- Cannot exclude evidence that a court would otherwise admit
- Orders an award based on the evidence presented that is legally binding on all parties
Arbitration is generally a private, voluntary method of adjudication; however, the government sometimes requires that certain disputes be submitted to arbitration (e.g., landlord and tenant disputes under the Residential Tenancy Act). Contracts sometimes require that disputes about the contract will be resolved by arbitration rather than litigation.
One advantage of arbitration over litigation is that the parties can choose their decision-maker. Normally the award of an arbitrator is final and binding – and is enforceable as an order of the court.
As you move from negotiation (where you negotiate a resolution to your dispute on your own), to mediation (where the mediator assists the parties in reaching a resolution), to arbitration (where the arbitrator makes a binding decision), the process becomes more formal, complicated, and more like litigation in court. For that reason, arbitration is generally more expensive than mediation, which is generally more expensive than negotiation.
Alternative Dispute Resolution Institute of BC can provide you with more information about dispute resolution services, and can provide you with a list of qualified arbitrators (and mediators).
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