ADR, Mediation

Points to consider in selecting a suitable mediator

By Rob Lamberti, AdvocateDaily.com Contributor

People who choose to resolve disputes through alternative dispute resolution (ADR) should opt for a mediator who has proficiency in the field, says Brampton civil litigator Edwin Upenieks.

Upenieks, a partner with Lawrence, Lawrence, Stevenson LLP, says it is vital that the mediator understands the issues as well as the nuances of the subject in dispute.

“I look to mediators based on their expertise on the subject area,” he tells AdvocateDaily.com, adding it is important for the parties to realize the mediator’s qualifications.

“In family law, for example, you should have someone who is familiar with the various issues involved,” Upenieks says. “It’s a discreet area, but when you have a marital breakdown where you have financial issues, custody and support, it’s best to go with a mediator with experience in the area.”

Upenieks says compiling a list of potential mediators and reviewing their resumés will help the parties — and their counsel— choose the best candidate.

A potential mediator’s style and use of formats, such as caucusing or personal interaction between parties, should also be on the list of criteria, he says. A mediator should have the ability to communicate with the parties, so the issues, including the ethics of a position, are clearly understood, Upenieks says.

“The approach or the demeanour of the mediator is important because they all have different styles,” he says. “Some may have a broad range of approaches, whether using a caucus or in the breakouts.

“You may want a mediator who is apt to be tough on each party,” Upenieks says.

The merits of using a mediator over litigation are clear, he says. Along with being cost- and time-efficient, mediation ensures confidentiality, allows for creative solutions that a court can’t provide, and can help preserve relationships after a decision is made, Upenieks says.

With litigation, however, plaintiffs and defendants usually do not get to choose the judge, he says.

“When appointed to the bench, judges are typically exposed to everything — criminal and family law and civil litigation. Even if they have no previous experience, they’re expected to take on a file,” Upenieks says.

There are often winners and losers in trials, and a court decision isn’t necessarily the end of a dispute, as it can be appealed, while an agreement through mediation can’t, he says.

“The parties and their counsel prefer the certainty of knowing who the mediator will be, as opposed to the uncertainty of who the judge will be, how many years he or she has been on the bench, and their previous experience as trial counsel,” Upenieks says.

Not only is it preferred to have a mediator with more than a broad understanding of the field encompassing the dispute, but they should also have experience mediating in that particular area of law.

“Given their direct experience, sometimes mediators will suggest something that the lawyers themselves didn’t identify,” Upenieks says.

Other factors to consider are a mediator’s availability, the location of the hearing (such as a neutral spot or a lawyer’s office) and whether it’s accessible, he says.

“Some lawyers and judges practise mediation on a full-time basis while others, like me, do it as an adjunct to their regular practice,” Upenieks says. “Obviously, some have broad areas of experience, while others focus on a specific area.

“So, when it’s two or three law firms involved, once they agree to mediation, usually one side or the other puts forward a few names of mediators,” he says.

Success is typically measured by a resolution that endures, Upenieks says.

“When a mediated decision is reached, you prepare the minutes of settlement right there to memorialize it, and you move forward,” he says. “It’s very difficult to set aside minutes of the settlement — it’s an agreement.”

While the factors of a case — including money — are important, Upenieks says the inclination of the parties involved to reach a resolution is key.

“It’s essential that both the parties and their counsel are willing to see the weaknesses and risks of their case so that they can be more objective,” he says.

“That’s where a mediator can be helpful to point out other scenarios, especially worst-case scenarios, so they move towards an ultimate agreement,” Upenieks says.

This is the second instalment of a three-part series on the merits of mediating disputes over litigation.

Click here to read part one — how mediation enables custom resolutions for parties.

Stay tuned for part three where Upenieks will discuss best practices in high-stakes mediations.

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