Frequently Asked Questions
Mediation is a tremendous opportunity for disputing parties to focus on what really matters to them, and to settle on that basis with the assistance of a third party mediator. Mediation provides a scope for solutions as broad and as wide as the law of contract. Mediation focuses on the parties, not the process, whereas litigation and arbitration tend to focus more on the process than the parties. Mediation provides certainty. Arbitration and litigation can only do this when they have concluded, by which time all the money is spent and it is too late to make changes. Mediation is confidential and almost always worth a try for that reason alone.
The parties engaging in mediation have nothing to lose but the cost of preparing and attending, and everything to gain in terms of early settlement. Mediation usually helps preserve relationships, communicates strong messages down the chain of command, and is often much more profitable for the parties than sustained litigation or arbitration.
Arbitration is private dispute resolution. Unless the parties adopt one of the many sets of institutional arbitral rules (and even if they do), they are free to craft a procedure that suits them. The only “downside” of arbitration, of course, is cost. In litigation the state pays for the system, in arbitration the parties pay for the system.
Parties that choose arbitration may do so for many reasons.
First: the of privacy of arbitration. The public does not participate in an arbitration and most arbitration provisions also provide for full confidentiality of the outcome.
Second: the ability to realize real economies by receiving evidence-in-chief by affidavit or by agreeing to limited time periods on a “chess clock” basis, both of which (and more) are well-understood and available in an arbitration environment.
Third: subject matter expertise of the arbitrator(s).
Fourth: the flexibility of schedules, allowing parties to plan exactly when their arbitration will be held.
What is “med/arb”?
“Med/arb” is a term often applied to a process whereby a chosen neutral first mediates a dispute and then, to the extent that the dispute does not settle, arbitrates the same dispute. A binding award, according to the terms agreed by the parties, then follows.
This process has its critics. Some say that the mediation suffers from lack of candour, as the parties know that they may have to appear before the same person as an arbitrator, and this makes them more reserved in what they divulge. Yet this process also has its supporters. If a mediation bumps up into an otherwise insoluble legal or factual issue, there is at least a way to take advantage of all the work done and get a useful result.
Legal advice about the "pros" and "cons" of med/arb is essential before agreeing to the process. There is another form of med/arb often referred to as “co-med/arb” where two neutrals are involved- the first to mediate the case, and the second to arbitrate it immediately following if necessary. This too takes careful forethought and preparation, but in the right cases it is an effective option.
How do we choose a process?
It is important to note that most dispute resolution processes are not mutually exclusive. You can mediate a case that is being litigated. You can arbitrate individual or all issues in a case that was commenced as a law suit in court. You can adjudicate while the contract is ongoing, and then if the proper steps are followed, have the case heard on its merits at the end of the project in an arbitration or litigation environment. ADR is contractual, and so the possibilities are almost endless, the timing almost open-ended.
For example, Mr. Glaholt has mediated cases between the close of a trial and the release of the judge’s decision. There are a multitude of possibilities, and this is where the expertise of a dispute system designer becomes important. Choosing the right process or combination of processes to suit a particular dispute needs experience in construction cases and in all methods of dispute resolution.
How do I prepare for
Much will depend upon the type of mediation being conducted. Most mediators look for a brief of pertinent facts including:
an outline of the issue from a factual and legal perspective
any fundamentally relevant documents
any formal pleadings in the matter
accurate statements of account
a brief history and outcome of any previous attempts at settlement or offers exchanged
perhaps the names and titles of the parties attending
In most construction mediations, the first phase is one of information exchange. After introducing the parties and the process, Mr. Glaholt will spend time with each party in private, gathering as much information as possible in aid of the mediation.
The next phase is usually one of “interest identification”, and here absolute candour is the best preparation, being completely aware of the business realities of the dispute and its process.
Finally there is the negotiation phase, managed by the mediator. At this phase, the best advice is to commit carefully and never look back, and to make it about what is smart for you today, not about what is happening in the future or in some other room down the hall.
Where is it held?
Mediations are commonly held in lawyers' offices or commercially available facilities. Mediations require a room large enough to hold all participants for plenary sessions, and separate rooms for individual break-out or "caucus" sessions. Mediations tend to be intense experiences and it is important that food, coffee, and other refreshments are readily available throughout what can be long days of interaction.
Arbitrations are legally “seated” in a particular legal jurisdiction so that parties know that the laws of that jurisdiction are applicable to the arbitration, and the court system of that jurisdiction is available to them if needed. The arbitration “venue" where the actual days of the hearing are held, may be chosen by the parties at their convenience.
There are purpose-built arbitration centres in some major Canadian cities, and arbitrations are often held in lawyers’ offices, accountants’ offices, conference centers, or hotel boardrooms. The facilities can be more or less formal, as the parties agree. Security is important, to protect the privacy of the arbitration process. Witnesses can and often are heard by video-conference, and hearings over procedural matters are often conducted quite informally by telephone conference call.
What is the cost?
Mr. Glaholt’s total fees are calculated by hourly rate for all preparation and communication, and as a per diem rate for all in-person or substantial hearings.
Once Mr. Glaholt is retained he will conduct a first conference, usually by telephone, so that the parties can explain the scope of the dispute, the amounts involved, and their expectations as to timing and cost. Mr. Glaholt will then estimate his fee (or cap it in the case of flat rate services). The total amount will be covered by the parties, most often in equal shares, and billed against at appropriate intervals.
Where an arbitral Tribunal composed of three arbitrators is chosen, the estimate fee would include all time and expected disbursements for all three arbitrators.
How do I book Mr. Glaholt?
Mr. Glaholt’s general availability can be determined by contacting his Mediation & Arbitration Coordinator, Teresa De Sousa, via this website or via telephone at 416.368.8280 (TeresaDeSousa@Glaholt.com).
In urgent matters, Mr. Glaholt is available on a 24/7 basis by telephone or video conference.