Tactics for success in high-stakes mediations

By Rob Lamberti, Contributor

A vital part of a mediator’s responsibility in helping disputing parties reach a settlement is to outline the risks of not resolving the matter, says Brampton civil litigator Edwin Upenieks.

Upenieks, a partner with Lawrence, Lawrence, Stevenson LLP, says mediation offers parties the ability to craft unique solutions that wouldn’t necessarily be available through litigation.

“It’s not always about the money,” he tells “Maybe it’s about winning, or saving face, or not giving in.”

The process involves the opposing parties voluntarily agreeing to solve their issues with the use of a neutral third party, who builds trust through caucuses and individual meetings, Upenieks says.

“A mediator explains the risks and what it would look like if they lose because parties always consider what success looks like, but they don’t like to think about the prospect of losing,” he says.

Upenieks says the advantages of using alternative dispute resolution and mediation include reducing legal costs and stress as well as reaching a resolution more quickly. The process is confidential, and the mediator is chosen by the parties. A trial often results in winners and losers, rather than trying to find a more equitable resolution, he says.

When choosing a mediator, parties should consider his or her record of reaching settlements, their ability to identify unique ways to resolve disputes, and their soft skills, such as the capacity to interact with people, Upenieks says.

Best practices for mediators include establishing that the parties involved are acting voluntarily to reach a mutually beneficial agreement, he says. The mediator is neutral but offers guidance so those involved can reach a mutual agreement, Upenieks says.

The mediator also ensures confidentiality in the process and the outcome, and it’s expected that the parties will adhere to the agreement, he says.

While mediation can reduce stress compared to a trial, family law matters and will disputes can be tumultuous for the parties involved, Upenieks says. In some cases, especially when dealing with unique heirlooms, a mediator can help develop a process to divide sentimental items among family members, he says.

“Often, it’s the case where one party doesn’t want to be in the same room, and mediators often keep them separate and don’t begin the process with a joint caucus,” Upenieks says.

He says some estate disputes become heated after the last parent dies and one of the heirs doesn’t receive as much as they thought they deserved.

“You have one sibling who not only spent time with the parent, but set aside their career, or paid significant amounts out of pocket, and that could become an issue,” Upenieks says.

While mediation can help to ensure relationships are kept intact, he says, “often they aren’t fully repaired or restored.”

Upenieks says the approach or demeanour of the mediator is important “because they all have particular approaches and some may have a broad range of them, whether in caucus where everybody is together or in the breakouts.

“Sometimes you may want a mediator who is ‘tougher’ on each of the parties,” he says.

This is the final 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.

Click here to read part two — what to consider when selecting a mediator.

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