Settlement Smarts for Self-Represented Litigants
pdf Settlement Smarts for Self-Represented Litigants: How to use Settlement Processes Knowledgeably & Effectively(1.95 MB) from Dr. Julie MacFarlane for the National Self-Represented Litigants Project.
This publication covers:
- Settlement basics
- Settlement conferences
- Mediation
- Negotiation and formal Offers to Settle
- Advice from other Self-Represented Litigants.
Settlement conferences in Family Law
Information from nsfamilylaw.ca about Settlement Conferences in the Supreme Court-Family Division or Family Court:https://www.nsfamilylaw.ca/programs-services/settlement-conferences
Court-based Assisted Dispute Resolution (Conciliation) for Family Law
Information from nsfamilylaw.ca about Assisted Dispute Resolution or 'Conciliation' offered at the Supreme Court-Family Division and Family Courts across Nova Scotia: https://www.nsfamilylaw.ca/programs-services/court-based-adr-conciliation
Mediation and Access to Justice
What is Mediation?
Mediation is an informal process where an impartial third-party helps the disputing parties find a mutually satisfactory solution to their differences. Mediation is a voluntary, confidential extension of the negotiation process where a facilitator guides the parties toward a mutually agreeable settlement. This is achieved by helping the parties clarify their underlying interests and concerns, and encouraging compromise and trade-offs based on the relative importance of each item to each party.
Mediation is usually well-suited to disputing parties who still have a somewhat amicable relationship, who are still able to negotiate, and who do not want a third-party to make final decisions.
Mediators cannot impose a resolution upon the parties since they are not able to make legally binding decisions. Any settlement reached, if in fact one is reached, is simply a contract signed by the parties just like any other contract. The settlement does not have the same legal force as an arbitration “award”, which is the written decision resulting from an arbitration.
Cases for Which Mediation May Be Appropriate
Mediation may be particularly useful when parties have a relationship they want to preserve. So, when family members, neighbors, or business partners have a dispute, mediation may be the process to use. Mediation is also effective when emotions are getting in the way of resolution. An effective mediator can hear the parties out and help them communicate with each other in an effective and non-destructive manner.
Mediation works well when highly confidential or sensitive information that should not be disclosed to the public is involved, a speedy resolution is vital, good ongoing relations must be maintained, there is some trust involved, or both parties are desirous of reaching a settlement.
Drawbacks of Mediation
Mediation may not be effective if one of the parties is unwilling to cooperate or compromise. Mediation also may not be effective if one of the parties has a significant advantage in power over the other. Therefore, it may not be a good choice if the parties have a history of abuse or victimization.
Mediation depends on cooperation and goodwill between the disputing parties. When there has been some wrongdoing involved or blame needs to be assigned it is unlikely that proper disclosure will be made and crucial information may be withheld. Mediators have little power to compel parties to produce evidence and documentation when they are unwilling to do so.
Also, when one of the parties is weaker, mediation may just exacerbate that weakness. This can be a serious problem in family disputes, when the weakness of one of the parties, or desire to accommodate leads to an unbalanced result.
What is a Mediator
A person who does not make decisions but facilitates the discussion, making sure that each side has the opportunity to put their side forward, eliciting information, finding areas of possible compromise, identifying potential problem and solutions, and encouraging settlement.
How can you find a Mediator?
The ADR Institute of Canada has regional branches across Canada where names of mediators and arbitrators may be available. ADR Atlantic (adratlantic.ca) has a partnership with the Legal Info Nova Scotia, and you may be able to get a referral to a mediator by calling Legal Info Nova Scotia's Mediator Referral Service at 902-455-3135 or toll free- 1-800-665-9779, or by email or live chat at legalinfo.org.
Watch this short video about Mediation
Answers to common questions about Mediation
Mediation is a process for resolving conflict. It is an alternative to court.
Mediation is:
- voluntary
- private
- confidential.
The parties have sole control over the outcome. Mediation is often used when parties to a conflict have failed to work the issue out for themselves. Mediation is about cooperative problem-solving.
Mediation is a process that involves a mediator, who is appointed by both parties, to help the parties find common ground and reach a mutually agreeable outcome, if possible. Mediators are neutral, impartial professionals. Mediators do not provide legal advice.
Can Mediation help me solve my problem?
Mediation is a process that allows people in conflict to discuss the situation in a private setting. People with problems, conflicts or disagreements can talk with each other and make decisions about their situation in a supportive environment. Mediation can help people resolve their problems and settle their disputes.
Who can benefit from mediation?
Neighbors, families, parents, community groups, co-workers and people in litigation can benefit from mediation. Mediation can be used for just about every kind of conflict.
What does the mediator do?
The mediator facilitates discussion between people in conflict so they can have the difficult conversations they need to have. The people in conflict can say what they need to say and be heard and hear the other persons as well. Mediation’s greatest value is not only to find solutions to people’s problems but to change how people in conflict behave toward each other: mediators help with this process.
How does mediation work?
It starts with all the parties involved agreeing to try mediation to resolve their problems. The mediator, who does not have decision making authority, may meet with each of the parties before the mediation to gather some information and to explain to the parties what to expect. A date is then set for the mediation. Often one session is all that is required.
What happens during mediation?
Pre-Mediation Stage
This is a stage where a mediator prepares for mediation. It is used to assess the dispute and the parties' willingness to negotiate and to arrange the meetings. At this stage the parties receive information about the process and how to prepare for the first meeting.
Commitment Stage
This is generally a session where the mediator explains to the parties the process and procedures. The parties explain their issues, priorities and hear those of the other party(ies). This is the first opportunity for the parties to learn if there is a willingness to work through the issues in order to reach a settlement. The parties begin to develop a cooperative relationship and some confidence in the mediation process and the mediator.
Negotiation Stage
The parties develop a mutual understanding of the interests underlying the issues and generate possible options for settlement. Where issues of disagreement exist, objective criteria are used as tools of persuasion. The mediator may meet separately with parties (caucus) and have joint sessions. The parties with authority to settle must be part of the negotiations at this stage.
Settlement Stage
Options for settlement are evaluated based on general principles and specific objective standards. Options are evaluated as possible solutions. Outside advice regarding possible solutions is sought. The processes for reaching and documenting agreement are discussed. When all parties are satisfied with the solutions, an agreement outlining the areas of agreement in clear, specific language is prepared.
What are some of the benefits of mediation?
Mediations are private and confidential; the court process is public and not confidential. They do not require forms and people in conflict do not have to follow complicated steps to get to mediation: the court system is all about forms, Rules and processes which can be very complicated for the ordinary person to follow. Mediations are quick, efficient and often much less expensive than court. Because problems can be addressed sooner, the parties are spared the emotional turmoil of ongoing conflict.
Voluntary Participation
Parties who enter into mediation do so freely. They are not forced to negotiate or settle but do so of their own free will.
Timeliness
The parties set their own timelines for the process. It is not controlled by court dates or waiting periods. Normally, the process can be arranged directly, between the parties and a mediator, to be held at a time and place convenient to the parties with little or no delay.
Saves Money
A mediator can normally provide an estimate of the cost of the process at the beginning. Evidence suggests that conflicts handled through mediation are most often much less expensive than the cost of going to court. The ability to choose an informed mediator usually increases the opportunity for cost savings.
Confidentiality
Mediation sessions are held in private and all proceedings are confidential to the mediator and the participating parties. Mediators usually cannot be called upon to give evidence, in any action that may follow the mediation, about any matters that were discussed during the mediation.
Supports the Parties
Parties who reach their own decisions through mediation have more influence on the outcome of their dispute as they remain in control of the decision-making process. This is very different from arbitration or going to court where the decision-making authority is with the arbitrator or judge. The mediator has no decision-making authority and is there to help the parties understand each other.
Practical Solutions
Parties who mediate their conflicts are able to consider the details of implementation. Settlements can be specially tailored to meet the parties’ needs.
Maintains Relationships
Because mediation addresses the parties’ interests and seeks to achieve a win for all involved, the process is non-adversarial compared to going to court. There is a greater likelihood of parties maintaining relationships through a mediation process.
Stopping the Process
As mediation is voluntary it can be stopped by any party at any time and it in no way affects pursuing another option for resolving the conflict.
Is mediation appropriate in abuse cases?
Although mediation is an alternative to court, it is not usually suitable for situations involving abuse, because of the imbalance of power in abusive relationships. It is important in mediation that all parties are able to take part in the process without feeling afraid, intimidated, controlled, pressured or coerced into coming to an "agreement". If there is a history of abuse or violence in the relationship between the parties mediation may in some cases provide an opportunity for further abuse, and may heighten safety risks.
If you are considering mediation it is very important to tell the mediator, and your lawyer (if you have one), about any abuse.
If you are speaking with a mediator to explore whether mediation would be right for you, and they do not ask you questions to screen for abuse or safety concerns, you may want to consider a different mediator.
Can my lawyer be our mediator?
For a successful mediation, both parties must trust the mediator to be completely neutral. Your lawyer’s job is to protect your interests and negotiate on your behalf. Your lawyer is not neutral. Lawyers can be mediators, but only where both you and the other parties together decide to hire the lawyer specifically for mediation, and not to provide legal advice. In such a case, the lawyer will act only as the mediator. Mediators do not provide legal advice.
Finding a Mediator or other dispute resolution professional
The Legal Information Society of Nova Scotia offers a Mediator Referral Service.
You can also find a mediator through:
- ADR Atlantic Institute - find a mediator, arbitrator, or other dispute resolution professional in Atlantic Canada. Members of ADR Atlantic Institute adhere to the Rules and Codes of Conduct & Ethics of the ADR Institute of Canada.
- ADR Canada Connect - find an alternative dispute resolution professional Canada-wide
- Family Mediation Canada - find a family law mediator
- Mediators are also listed in the Yellow Pages of the telephone book under "Mediation-Services" and "Marriage, Family & Individual Counsellors", or look online.
More information about Mediation
- ADR Institute of Canada: information about various ways to resolve disputes without going to court
- Family Law Nova Scotia: Family Mediation, including a video about alternatives to court- https://www.nsfamilylaw.ca/programs-services/mediation
- Judicial Mediation at the Nova Scotia Court of Appeal - https://courts.ns.ca/courts/court-of-appeal/mediation-program
Family law: Collaborative law approaches
Collaborative law is a dispute resolution process, facilitated by trained lawyers who assist participants in resolving conflict using cooperative strategies rather than adversarial techniques. Get more information about Collaborative Family Law, including contact information for trained collaborative family law professionals, from Nova Scotia Collaborative Lawyers: collaborativefamilylawyers.ca
Appeals in a civil or family law dispute: Judicial Mediation at the NS Court of Appeal
Judicial Mediation at the Nova Scotia Court of Appeal - https://courts.ns.ca/courts/court-of-appeal/mediation-program
This program helps litigants avoid costly and time-consuming courtroom hearings. It is voluntary and is available to those who have launched an appeal in a civil or family dispute (not available in criminal appeals).
The idea is to give litigants the opportunity to resolve their differences themselves under the guidance of a Judge. Litigants who cannot afford a lawyer, or who are representing themselves, have access to the services of a lawyer free of charge. Go to courts.ns.ca to find out more about Judicial Mediation at the NS Court of Appeal, including answers to common questions and form to fill out when requesting mediation.