Going To Mediation as the Defendant

by Roberta HillRoberta's Picture

Let me begin by putting my experience and perspective into context. I am a great supporter of all forms of alternative dispute resolution. I have worked in the field of organizational conflict resolution since 1982 and taught courses on the subject matter. I have been on the Board of Directors of the Dispute Resolution Centre for Ottawa-Carleton / Le Centre pour la Résolution de Disputes d’Ottawa-Carleton since 1995. My belief in the mediation process has motivated me to take additional training so that I could bring a formal mediation process into my practice of management consulting.

Ten Months Before
So, what did I do when I was threatened with litigation last year? Basically, I said "When hell freezes over" and got myself a good expensive lawyer. (Might is right.) Why fight mediation after being such a strong advocate? Simple:

  • I have done nothing wrong. It is a matter of principle.
  • Sure I am angry and feel betrayed, but my motives are not revenge. It is about justice.
  • I would rather give the money to my lawyer than the plaintiff.
  • How dare this person do this to me? I’m going to drag this thing out for as long as it takes.

Two Days Before
In two days, I will be going to the mandatory mediation that I finally requested. Over the past year, I have come full circle and I would like to share my discoveries with you.

Mistake #1:
It is irrelevant who is right or wrong. Life is not fair. Stephen Covey says that when we blame and accuse others, we only hurt ourselves. By accepting personal responsibility, we don’t let others’ drive our decisions. We make choices according to our values, purposes and ideals.

Mistake #2:
You think at the beginning that it is about money. It is and it isn’t. If it were really about money, you would do whatever it takes to settle through mediation before you spend even more of your own money. The truth is that you do want some sort of revenge, even if you call it justice. And that is OK., but it isn’t going to help solve the situation. I am still very angry and I have been working through my feelings about the lawsuit. Still, it is easy for me to get upset and obsessed with the case. Then I try to remember what my business partner, Ginger always says: "The best revenge is living a good life".

Mistake #3:
So, you think that it will cost you the same whether you give it to the plaintiff or your lawyer? Wrong! Oh you will give the money to your lawyer and then some. According to a provincial review of the courts by the Ontario Civil Justice Reform project, average legal fees will cost $38,000. Even if you win and the other party is required to pay the maximum of 50% of your court fees, it will cost you close to $20,000.

Mistake #4
Perpetuating the situation by prolonging and delaying the process only has a negative effect on your own personal life. No matter how much you think you can handle it, it takes its toll; professionally, personally, emotionally, and spiritually. "It’s not what people do to us that hurts us. In the most fundamental sense it is our chosen response to what they do to us that hurts us." (Stephen R. Covey) I just didn’t want to continue to maintain this negative "relationship" in my life.

The Day After
I got my "deal" and by the end of next week it will be finished. I have to finalize getting a loan and certified cheque. Once the Minutes of Settlement is completed and the Consent of Dismissal filed it will be all over. The process was as I had expected it to be. The co-mediators were competent and focused. They were on the mark but occasionally strayed off as they ensured that all the information and feelings were "put on the table". We only had a couple of tense moments that were easily facilitated by the mediators. I was surprised that I did gain a greater insight into the plaintiff’s position, but I must confess I still do not agree with that position.

It was a satisfactory experience and I am very happy with the outcome. I don’t feel angry anymore. Sure, I have to pay some money but, in the long run it will probably be less than if I had fought it out. More importantly, the emotional strain is over.

Mediation is not only the right way to go, it is the only way to go. Probably, I should have been more open to the process at the beginning. The truth is I wasn’t ready for mediation. Even if the process has ended up costing me more because of my refusal, I had to reach the place where I was desperate to reach an agreement. Then I knew that mediation was the only way that I could be sure to find a mutual solution.



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