Reema Bakshi Interview With Mitchell Rose
There is a growing interest in Canada in self-representation as a litigant, or self-represented party (also known as an SRL), both civil and family, with almost half pursuing mediation for dispute resolution.1
While the law and dispute resolution processes can overlap, both are fundamentally distinct. Ultimately, mediation is about people and communication. The connection between legal and mediation processes has led to confusion about the two processes, as well as the distinct role mediators play, separate and apart from legal professionals2.
Why is it confusing? When an individual seeks out mediation, they also often require separate legal advice and consultation. These self-represented disputants are choosing to represent themselves within a mediation process, as opposed to being represented by a lawyer or paralegal. Self-represented parties require information about how to navigate both the mediation and legal process.
Reema Bakshi, a law student from University of Ottawa, Faculty of Law, was on an internship with Rose Dispute Resolution in July/August 2020. With a keen interest in mediation, arbitration, and the civil litigation process, Reema tackles the topic of self-represented parties in the mediation of civil disputes in her interview with Mitchell Rose, Chartered Mediator. For purposes of this interview, she speaks with Mitchell on this topic, and his past experience as a civil litigator and settlement counsel, in the use of consensual dispute resolution processes—civil disputes only—and to help clear up confusion.
Reema: Mitchell, how would you define a mediation with self-represented parties or self-represented litigants?
Mitchell: It is a mediation where one or more parties in the dispute engage in mediation without a lawyer or paralegal representing them at the mediation. In some cases, the self-represented person has obtained legal advice prior to the mediation but has not hired the lawyer to attend the mediation.
Reema: OK, so let us say I am thinking of hiring a mediator to help settle my dispute. When can I initiate a mediation?
Mitchell: Mediation can usually be initiated at any stage of a dispute, if the other parties in the dispute agree although certain rules apply if you are involved in an Ontario lawsuit (action) to which Mandatory Mediation applies.
Reema: I’m going to go here first… how much does a self-represented mediation cost?
Mitchell: Well, my fee for a mediation with self-represented parties is the same as the cost of any other mediation. You would have to refer to the specific mediator’s fee schedule. Mediators typically charge for half-day or full-day mediation plus the cost of renting a room if it is held in-person. A virtual mediation is a way to cut some of the cost. If a person has a lawyer or paralegal, there is the additional cost of bringing a lawyer or paralegal to the mediation, which is optional for a self-represented party, and other expenses such as travel for the mediator, if applicable.
Reema: Let’s explore the roles of a mediator versus a lawyer a bit more… what is the difference? Why can’t you play both roles for a party?
Mitchell: A mediator, unlike a lawyer, is not an advocate for one side or the other. They are a neutral third party. In fact, we are often called “neutrals”. Conversely, a lawyer’s primary duty is to their client and to advocate for that client.
As a mediator, I would say the “true client” is the mediation process. I want to ensure an optimal process is followed that can help to deliver a mutually advantageous resolution, or settlement, for the parties. Even if a full settlement cannot occur, the process is designed to help the parties learn more about the other side of the dispute (for example, what their interests and motivations are), or narrow some of the issues.
Reema: What is the difference between a mediator and an arbitrator. Or a judge for that matter?
Mitchell: A mediator plays a facilitative role and is not a decision maker. The role of a mediator is to help the parties reach their own decision.
An arbitrator and a judge are decision makers. They are called upon by the parties to hear evidence and legal arguments to ultimately come to a decision that is imposed on the parties. The main difference between an arbitrator and a judge is that a judge is a publicly appointed, high-ranking government official, whereas an arbitrator is privately hired and paid to decide a case.
Reema: How will a mediator help me as an SRL? What is the benefit to me?
Mitchell: Mediation provides a potentially lower cost, lower time commitment and lower-risk opportunity for resolving a dispute, as compared to resolution by way of court or arbitration.
A mediator creates an atmosphere supportive of parties settling their own dispute and crafting a resolution together with the mediator’s help instead of having a resolution imposed on them. This can be very empowering for the parties.
Mediators can also be useful in the process of repairing a relationship that has broken down because of a dispute.
Mediation is also private and confidential, whereas court is not private, and arbitration may only be to a certain extent.
Reema: Is there anything that a mediator cannot help me with?
Mitchell: A mediator cannot take your side over the opposing side. A mediator cannot make the settlement decision for the parties. Additionally, a mediator cannot be asked to convince a side that a mediation is the way to resolve the dispute, or to hire a particular mediator. The decision to enter mediation, and which mediator to hire should be agreed upon by both parties. In some situations, the mediator may be called upon by both sides to make a settlement recommendation, but it is only a recommendation and it cannot be imposed on the parties unless they agree to it. As well, a mediator does not provide the parties with legal advice, even if the mediator is also a lawyer or former lawyer.
Before contacting me, a self-represented person should know whether they are interested in hiring me as settlement counsel or a mediator. I cannot be a lawyer and a mediator for the same dispute.
Reema: But I really don’t want the added expense of a lawyer. Why do I need a lawyer involved as well? And am I somehow disadvantaged if I don’t have one?
Mitchell: A mediator should always recommend that a self-represented disputant consult with a lawyer or paralegal before initiating a mediation. As you say, some may not want to because of added cost, but there are other reasons. I am usually comfortable going forward with mediations where all parties, or only one side, is self-represented and mutually agree.
There is no substitute for having legal representation in most types of mediations. That does not mean that the disadvantage is so great that a mediation would be inappropriate. I conduct many SRL mediations where there is no legal representation. The onus is on the individual self-represented party to weigh the costs and benefits of having legal representation, verses not, and proceeding with mediation anyways.
Reema: How can I choose the mediator that is right for me and my needs?
Mitchell: Both parties need to consider whether a mediator has the skill, character, competency, availability and experience for their particular situational dispute. With people wary of in-person mediations these days or where distance and travel can be problematic, you may need to consider a virtual mediation and so whether a mediator has the competence with virtual mediation by technology such as videoconference as I do.
Reema: How can we validate a mediator has those characteristics? Can we interview a prospective mediator first? To know he or she is right for us, or can deliver a settlement?
Mitchell: Research and referrals help. Another consideration is whether the mediator is credentialed by a third-party professional ADR body, such as ADR Institute of Canada (ADRIC), Canadian Academy of Distinguished Neutrals (CADN), or International Academy of Mediators (IAM).
Reema: With both parties decided on the mediator, what are the next steps I should take as a self-represented party?
Mitchell: First, you would book a date for the mediation to be held at a mutually agreeable time (making sure you have time off work, or free of other commitments or distractions, during that time).
You would then need to prepare and/or have all the relevant documents that relate to the dispute ready—for the mediator and the opposing side—to review just prior to mediation to understand the dispute. The documents which each side provides, along with a summary of the dispute from the party’s perspective, is known as their “Mediation Brief”.
This is where I may suggest a self-represented party should strongly consider consulting with or even hiring a lawyer or paralegal.
There may also be considerations for accommodations, such as a support person, professional advisors, spouse or partner, translator, etc. In this instance, the other participants need to agree to the attendance of the third party and the mediator arranges for a third party to sign the mediator’s mediation agreement, to ensure confidentiality. I am comfortable and experienced with mediations where all parties, or only one side, is self-represented.
Lastly, I would encourage an open mind to explore all possible avenues to a resolution, even those you haven’t already considered, and that the mediator might explore with you. You are investing your time, effort and financial resources to try to settle out of court, as the court is a more costly proposition in many ways, and usually not as satisfying.
Reema: Do I have to be in the same physical space as the opposite party?
Mitchell: No. If it is an in-person mediation, the parties do not have to be in the same room and can be in separate rooms. However, the rooms are often in close proximity to one another, such as within the same suite or building, and the mediator will move back and forth between rooms.
This is where a virtual mediation becomes beneficial; you don’t have that concern, nor do you have worries about health and safety in our COVID world.
Reema: How long is a mediation session?
Mitchell: It varies. It’s been my experience most disputes take at least three hours (defined as a half-day mediation) to reach a resolution, or to reach a point where no resolution is possible on that specific day, or that more time is needed. For more complex disputes, or where multiple disputes between the same parties are tabled, those can go for a full day. When I observe that the parties are very close to settling with only a couple of sticking points, I will recommend extending the mediation or further mediation sessions to reach a resolution.
Reema: Got it. This was very helpful, Mitchell. Tell me, what about you? What types of self-represented civil disputes have you mediated and settled?
Mitchell: I have mediated a wide variety of disputes involving self-represented parties, including commercial tenancy matters, collection proceedings, personal injury, neighbour disputes, and others.
Reema: Thank you, Mitchell. I really appreciate the clarity on this topic and your insights. I know it will be useful to your blog readers and potential clients as well.
Mitchell: Pleased to hear that, Reema. Great interview!
1 Tracking the Trends of the Self-Represented Litigant Phenomenon: Data from the National Self-Represented Litigants Project, 2017, Kaila Scarrow, Becky Robinet and Julie Macfarlane
2 Fairness and Formality – Mediation Advocacy and the Self-Represented Disputant
For 20 Frequently Asked Questions on the topic of Self-Representation and Mediation, please go to the Resources section on mitchellrose.ca.
To learn more about Mitchell’s mediation practice, or to book a mediation, click here.
This interview blog is for educational purposes only and is not intended as legal or other professional advice.