Mediation and Case Settlement; Two Different Processes

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I read an interesting article in the Harvard Negotiation Law Review on comparing, or perhaps more correctly, contrasting the process of mediation and case settlement. I would like to highlight key elements from the article. I found the article quite compelling for me and reinforced why I believe in the mediation process as a better way to achieve resolution.

In a court proceeding, we are all familiar with the settlement conference which is a case settlement process. As in mediation, it involves a third party, the judge, who facilitates the discussion, attempting to settle the case. There are however very fundamental differences with this process as opposed to mediation and possibly very different outcomes for the parties.

To highlight the differences,

  1. In case settlement, the lawyers play the key role. The third party (judge) attempts to convince the lawyers of a compromise solution. In mediation, the parties themselves play the key role, not the lawyers, with the mediator acting as a facilitator. It is the parties themselves who are engaged in the discussions, exploring all possible options for settlement. The parties have far more participation in the mediation process.
  2. In case settlement, the third party facilitator focuses on a rights based approach to settlement.Too often the focus is on past behaviour, conduct and placing blame. The issues are defined by pleadings, drafted by the lawyers and read by the judge. The discourse is about the other party, most often conduct and blame. In mediation, the mediator engages the parties directly and the process is forward looking not backward looking. The facilitator challenges the parties to talk to each other not about each other. The discussion is non-evaluative and looks to moving the parties forward, working with each other to resolve their issues.
  3. In case settlement, the negotiations are positional and rights based. Legal arguments and legal rights are at the forefront of the discussion. In mediation, the discussion is interest based with the mediator exploring interests and needs of the parties. It is interest based negotiation as opposed to a rights based negotiation. Legal rights are discussed but are not the primary focus. The mediator looks to facilitate a mutual respect or acceptance of the others needs, interests, motives in order to have a less adversarial approach to discussions and negotiation.
  4. Case settlement does not have as an objective, having the parties gain a better understanding of each other and themselves. The objective is to get the case settled. There is not a collaborative building of information sharing and working together to create options for resolution as in mediation. Most often a resolution is based on compromise that is simply somewhere along the spectrum between competing offers. Too often, a resignation just to get it over with. In mediation, the objective is to create value not just distribute value. Mediation can create options and resolutions that are not limited to remedies available in the court system.
  5. In case settlement, the parties listen to a judge, who they see to be in a position of authority and power. They are not empowered in any way during the process. In mediation, the parties themselves are empowered to find solutions to their problems. The mediator assumes no power or authority over them. They are engaged and are given the responsibility to collaborate with each other to find mutually acceptable solutions

Most importantly, what benefits can we say are achieved by the parties after a resolution in either a case settlement or mediation process.

In case settlement, the matter is resolved, they are finished with the court system and paying legal fees. There is however no resolution of feelings, no understanding or trust building that will improve their ability to communicate, get along after or move forward, There may be unresolved feelings of blame, anger and resentment. In fact, the relationship may be worse having been unable to explore, talk about, share or understand each other’s feelings. They see it as a win/lose outcome that results from positional bargaining.

In mediation, the parties have the opportunity to take an active and primary role, listen to each other, search for and work together to create solutions that relate directly to their needs and interests. After resolution they look at the settlement as one they arrived at together and have direct responsibility for creating. They own it. The mediation process has given them the opportunity to communicate and gain a better understanding of each other. Most importantly, they have a platform from which to continue that communication afterwards and look forward to a new and better understanding of each other.

About the Author: Malcolm Bennett is a Certified Family Law Mediator (OAFM) and is trained and experienced in Family Law Arbitrations. For further information, Malcom can be reached at Malcolm@bluewatermediation.com or call 519-660-6726.

Mediating a Cohabitation or Marriage Contract

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Parties who find themselves wanting a cohabitation agreement or marriage contract will quickly find that those discussions are sensitive and emotionally charged. Sometimes there is additional pressure exerted on the parties by family who recommend such a contract be put in place.

It is vitally important that the parties be able to communicate the reasons why one or both may want such a contract as a precondition to living together or marrying. They both need to be clear as to their expectations and intentions for such a contract. These discussions need to be handled in a sensitive way, exploring the reasons and need for a contract and exploring options that may be available to meet both parties interests and needs.
[Read more…]

Calculating Child and Spousal Support

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Child support is calculated according to the Child Support Guidelines which is a table that stipulates the amount of child support based on income  and the number of dependent children.

Child support is normally adjusted annually with the most current income being used to make any appropriate adjustment to the support amount.

As a guide to determining the amount of spousal support , the Spousal Support Advisory Guidelines are used . These guidelines generate a range of spousal support .

Most separation agreements or court orders for support include a provision for an annual review of child support. I often get requests to assist parties in determining the  adjustment to the child support amount. [Read more…]

Mediator’s Brief – Issue 1, February 2017

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Malcolm Bennett is pleased to author a newsletter regarding family law and alternative dispute resolution, The Mediator’s Brief.  This issue highlights Private Case Management for Mediation and Arbitration and features an article by Louise Vandenbosch titled “Teaching Your Clients How to Make A BIFF® Response”. [Read more…]

Visitation Rights for Grandparents Finally Enshrined in Legislation

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On December 8, 2016 Bill 34, An Act to Amend the Children’s Law Reform Act with respect to the relationship between a child and the child’s grandparents received Royal assent. This means that the grandparent’s rights to visit with their grandchildren is now recognized in the legislation. Subsection 21(1) of the Act which sets out who may apply to a court for a child custody or access order is amended to make specific reference to grandparents. Furthermore sub-clause 24(2)(a)(i) of the Act is amended to have the courts, in determining a custody or access application, to consider the relationship between the child and each parent and grandparent.  Although under the Act, grandparents have always been permitted to seek court orders for custody or access under the “any other person” provision, the amendment now gives grandparents specific reference and a stronger mandate  to seek a court order for regular, guaranteed visitation with their grandchildren.

Co-Parenting – A New Approach

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A mother and stepmother who co-parent together are hoping to inspire other blended families to move past disagreements and create conflict-free spaces for their children. Read the full article published on CBC News on December 12, 2016, here.

McKenzie Lake Lawyers LLP acquires Bluewater Mediation

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McKenzie Lake Lawyers LLP is pleased to announce the acquisition of Bluewater Mediation following the appointment of Lene Madsen, past principal mediator with Bluewater Mediation, to judge of the Superior Court of Justice and a member of the Family Court in Hamilton this August.

“This acquisition was a great opportunity for McKenzie Lake to build a broader offering of mediation and other areas of dispute resolution for our firm going forward” said John McNair, Managing Partner.

With over 40 years of experience, Malcolm Bennett will be continuing Bluewater Mediation’s commitment to family mediation, arbitration, teaching and training.

In addition to the above services, Malcolm also offers mediation in Estate matters and Elder mediation.  As an accredited Family Mediator, he brings his knowledge, understanding and skills to assist in the resolution of family disputes in considerate, respectful and co-operative manner through mediation.

Alfred Mamo, also an accredited Family Mediator with over 40 years of experience in family law, spends the majority of his time conducting mediation and assisting parties and their lawyers and will also be providing services to lawyers and clients, primarily servicing the Toronto area.  Alf is committed to ensuring that the most appropriate dispute resolution strategy is developed and carried out in the most cost effective and timely fashion.

To find out more about these services and availability, please contact us today at info@bluewatermediation.com.

The Changing Face of Advocacy

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This article discusses why we all need to change the way in which we deliver our services.  The new form of advocacy is essential for the new lawyer and it may be perhaps easier for him or her to adopt than those of us who have done it the same way for many years.  Read full article here.

Tips on Drafting A Mediation Brief

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A mediation brief is not a pleading, factum or novel.  Your clients have chosen mediation to reach a resolution, to avoid or end litigation and try to arrive at a solution that is acceptable to both parties.  To learn about some practice tips for writing your mediation brief, read the article here.

A Friendly Guide to the pleasures and perils of alternative dispute resolution

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This is the first in a series of Mediator newsletters written by Malcolm Bennett in order to offer the opportunity for dialogue and information and hopefully provide some value to counsel and parties thinking of using mediation and/or arbitration.  To read the full newsletter please click here.