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Mediation enables ‘creative’ conflict resolution

Legal dispute mediation begins with the premise that all conflicts can be resolved without resorting to costly court actions, Toronto lawyer and mediator Eric Gossin tells AdvocateDaily.com.

Gossin, managing partner at Stancer, Gossin, Rose LLP, says unlike court, where cases are decided and settlements imposed, mediation seeks paths where the parties agree to settle their dispute outside of court, saving them time and money.

The mediator should be tenacious, creative and neutral, he says, adding impartiality — having no interest in the outcome other than negotiating a deal — is "the underpinning of the process."

"The mediator should look at every problem as having a solution,” Gossin says. “Once the parties decide mediation is the best course for resolving their dispute, they provide the mediator with a summary of the issues and then we arrange a meeting,”

Typically, opening statements are given in the same room, and then the parties retire to separate rooms using the mediator in what he calls "shuttle diplomacy."

The mediator should be skilled in the process of encouraging parties to talk to each other, Gossin says, adding the list of issues — and how they are dealt with through non-binding mediation — is potentially endless.

"There are all kinds of problems that can be mediated: it can involve conflicts with employees, suppliers, or any issue where you can anticipate it may result in a lawsuit," says Gossin, who has been a mediator since 1995.

"It could also be used in a situation where you are already involved in a lawsuit," he adds. "Mediation falls under the spectrum of alternate dispute resolution."

In commercial scenarios, business people can decide whether to invest a large sum of money in the legal system or find another way of resolving disputes and potentially save time and money, Gossin says.

The objective is to seek a resolution to the legal dispute that doesn't become unwieldy and distracting while locked in a costly courtroom battle that offers no guarantee as to the outcome, except the possibility of creating more bad will among the parties, Gossin says.

He believes the time to consider mediation is "almost before you start your lawsuit."

"The business community realizes that early on in the legal process they can hire people who are trained in dispute resolution — mediation, arbitration or a combination of the two," Gossin says.

"Enlightened" lawyers will advise their clients that they could either launch a lawsuit or choose a neutral independent third party trained in mediation, he says.

"The real question is what is the best solution for the parties, having regard for not just their strict legal rights but also knowing you're giving them an opportunity to craft creative solutions," Gossin says.

He has mediated cases where the disputing parties later got back into business together, finding a way to look beyond a "colossal misunderstanding" to see the long-term benefits of their relationship.

"We had one mediation where a client made a sizeable donation to a charity as settlement for the claim," Gossin says. "They basically said, 'I'm not giving you a penny, but I will donate to the charity.' You can't find those types of creative solutions under the umbrella of a lawsuit.”

Often, when people launch lawsuits, they are under the mistaken impression the court will punish the person who did them wrong, he says.

"Forget it," Gossin says. "The system isn't designed to effectively punish and few people learn a lesson."

A skilled mediator identifies the specific interests of the parties — does one want an apology or a job finished — whereas lawyers may get stuck in a legal position.

“Good litigators are invested in their client’s case, but at mediation, the focus is more practical — we’re looking for both parties to walk away with an outcome they can feel good about, even if that just means the fight is over.”

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