Articles

It should come as no surprise that lawsuits commenced in public courts are, for the most part, public. In Ontario, court documents filed in civil proceedings are, generally speaking, public record (and are rarely sealed by court). Written decisions rendered by the judges at the end of trials or other types of hearings are also public record and are increasingly available on-line to the public at no charge.

Lawsuits can be costly. Parties who are billed by their lawyer on an interim basis already know this. However, even if legal fees are deferred until some future event or are contingent or dependant on the party recovering money at the end of the case, a lawsuit can still prove to be costly once the event triggering the obligation to pay a fee occurs.

At the beginning of a mediation, I discuss with the participants five key reasons why they should consider settling their civil dispute at mediation instead of proceeding to court: Risk, Time, Cost, Privacy and Finality. In this post, I discuss risk, or, more precisely, the avoidance of risk as a reason why a mediated solution is preferable to Court.

Legal disputes take time and take up time. Saving that time is another reason why settling at mediation may be preferable to going to court. As mentioned in my last post about avoiding risk through a mediated solution, at the beginning of each mediation, I discuss with the participants the five key reasons why they should consider settling their civil dispute: Risk, Time, Cost, Privacy and Finality.

Whether or not you consider a successful mediation to be one necessarily ending in settlement, just a frank exchange between the parties and counsel or an effective case evaluation by the mediator, here are seven ‘secrets’ to help you maximize success at your next mediation.

The case of York University v. Markicevic and why mediation matters.

10 tips on how *not* to sabotage your mediation.

"We're just being reasonable"; "Come on, be rational!"; "You're not thinking clearly!" Lawyers and parties often make or hear statements such as these in the course of litigation - especially when attempting to negotiate a settlement with the opposing side at mediation. Yet how do people really know when they are engaging in rational thinking?

When is a mediated settlement not a settlement? When there is a $7-million dollar dispute about what that settlement covers, and sufficient resources to fund an appeal to the highest court in the country. And why should mediators be appreciative of that litigation? Because it produced an authoritative primer on settlement privilege and confidentiality—legal concepts that contribute to the legitimacy and predictability of the mediation process.

In some jurisdictions across Canada and the United States, policy makers have suggested the implementation of a “good faith” requirement to ensure that parties will not frustrate the goals of mediation and will participate effectively. This paper will explore some of the pitfalls of a mandatory good faith requirement.