The legal system concerns itself with the facts, and the results are often black and white. But life and your case are rarely that simple.
Lawyers — even those who are settlement-minded — are trained and ethically required to aggressively push their best case forward. Lawyers are trained to “win.” Isn’t that why you hired your lawyer?
Mediation is about reaching a “win-win” solution. In family mediation, you meet face-to-face with the mediator, usually without lawyers present, which also helps to reduce costs. It is you, not the mediator or the lawyers, who makes the decisions. The mediator manages the mediation process, is impartial, and is trained to help you reach an agreement.
Contrast this with a typical “four-way” settlement meeting, in which the clients and their lawyers meet. Each lawyer speaks to the other lawyer. There is usually little or no direct communication between the clients, and often, you will be in separate rooms with the lawyers in another room.
In lawyers’ settlement meetings, there is a certain amount of “posturing.” The mediator will discourage this. Lawyers who are working hard for their clients may miss the emotional significance of issues to their clients. The mediator is there to help you see the interests underlying your positions. By using a mediator, your lawyer can continue to do what he or she does best — advocating for you — while the mediator can focus on helping you settle.
With a success rate of more than 80%, mediation is a sensible and relatively inexpensive process. You really have little to lose, as you can end the mediation at any time and go to court. If you do reach a settlement, since it is both voluntary and designed by you, it is much more likely to be a lasting solution for you and your family.
Colm Brannigan, M.A., LL.B., LL.M. (ADR) practices mediation in Brampton, ON as a principal of Mediate.ca.
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