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MEDIATION

mediation

MEDIATION in CIVIL ,COMMERCIAL and LABOUR MATTERS

Fast, economical and confidential, civil and commercial mediation is a process which gives the parties a better knowledge of every aspect of a conflictual situation and allows them to analyze it objectively in an effort to knowledgeably negotiate a settlement which satisfies their true interests.

This process is carried out without prejudice, with the help of an impartial third party who does not rule on the issue, but seeks to meet the needs of each of the parties by favouring productive discussions, helping each of them become aware of the tangible and intangible aspects of the conflict and facilitating negotiations.

Why mediation?

Each case carries its own inherent difficulties, based on its nature, complexity, stakes, the number of parties, the state of the parties’ relations or their emotional response to the conflict.

Over the past decade, the integration of mediation to the legal practice has been shown, in many cases, to be more effective and satisfying than conflict settlement by a judge according to legal procedures and the rules of evidence.

Seeking a solution

The role of the mediator is to encourage negotiations on both sides of the issue, and help the parties in caucus to analyze the offers tabled.

He can suggest avenues for bringing the parties closer, based on the information gathered in the plenary meeting and in caucus, or on his understanding of the true interests of the parties. He introduces his objectivity, judgment and creativity into the process, to unblock impasses and find solutions.

Settlement agreement

At the conclusion of a successful mediation, the parties will normally memorialize the terms of the settlement in a written document that is signed by the parties.

A settlement agreement resulting from a mediation is enforceable in the same manner as any other settlement agreement. Public policy in Canada encourages parties to settle litigation and, as a result, it also favours the enforcement of all valid settlement agreements.

In Ontario a settlement agreement is a contract, and it is enforceable just like any other contract.

If one party fails to comply with the terms of a settlement, the non-breaching party may have the option to accept the failure to comply as a repudiation of the contract of settlement and proceed to litigate the original dispute as if there was no settlement. The non-breaching party will also have the option to start a court action to enforce the terms of the settlement. If the terms of the settlement are adequately documented in a written agreement, it will usually be faster and easier to enforce the settlement agreement than it would be to litigate the original action.

In Quebec a settlement agreement is a transaction according to the civil code and as such is enforceable after homologation by the courts.

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