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Mediation: Down To The Nitty-Gritty

February 23, 2024 by Wendy Cheung

Negotiation: It doesn’t hurt to ask

Negotiation – It’s just communication. It also requires asking questions – testing the waters, and seeing what the response may be. We do it every day – with our children, with our employees/employers, or with the person holding the garage sale.

The point of negotiation is to create a situation where both parties initially at conflict communicate with each other, sometimes with the help of a lawyer, to find a mutually acceptable resolution. The best outcome is if everyone can settle a dispute with a win-win mindset.

In law, we usually use without prejudice settlement proposals written in a letter to the other party or their lawyer. There is typically discussion about some of the background positions of each party and the tradeoffs the party making the proposal is willing to accept for a resolution. In my opinion, the best practice is when the proposal is pre-empted or followed up by a phone call to the other party’s lawyer, which can be important for setting a collaborative space to foster good faith negotiations, and ease the invisible but palpable adversarial tension that first exists when the dispute first arose.

Maybe it’s not just as simple as communication after all

I’m not going to lie, sometimes it’s not as simple as just asking for what you want. There are techniques involved in a negotiation process. It’s not only about what you ask for, but how you ask for it. Without giving away the tricks of the trade, some of these techniques employ skills such as active listening, value creation beyond ‘just the dollar amount’, and reframing interests and emotions. These skills are also actively employed in mediation, which we will discuss in the next part of our ADR series.


Letting go of the control, but just by a margin…

The end result of arbitration is a neutral person trained or with experience in the subject matter of the dispute makes a determination on the outcome of the conflict for the parties. Sounds a lot like what a judge in court does – you might think. And you’re right. Also, the parties have to pay for the time the arbitrator spends on the case, and at many hundreds of dollars an hour, you may think that it may be more economical to have the dispute hashed out in court instead.

However, arbitration is less formal and streamlined in process. There are certain fixed and mandatory court procedures the parties must go through which can take sometimes years to complete before the parties even meet their judge for the first time. These procedures can be costly, especially if one or more parties dig their heels in with some sort of hesitation in complying with these steps.

A colleague of mine once described arbitration as sort of like a “choose your own adventure” novel. The parties can agree in advance, with the assistance and agreement of the arbitrator, what the ground rules for the arbitration process will be. A commercial dispute that would normally take 2 or more years to get resolved in court, can realistically be resolved through arbitration within 6- 8 months or even less.

Arbitration can also be combined with mediation with the same person who acts as both the mediator and arbitrator. Med-Arb or Arb-Med methods for resolving civil and commercial disputes are being used more and more in today’s ADR practice and can offer parties more options and strategies for resolving conflict. We will discuss these methods in a series on arbitration in the near future. Stay tuned.

Contact Wendy Cheung, litigator, negotiator, mediator and arbitrator, of FH&P Lawyers, if you think you have a case which may be suitable for negotiation.


Disclaimer:This article is for informational purposes only and does not constitute legal advice. The views expressed are Wendy Cheung's and do not necessarily reflect those of FH&P Lawyers LLP. For specific legal advice, consult a qualified attorney.

About the Author: Wendy Cheung is a key associate at FH&P Lawyers LLP, specializing in litigation and negotiation. Her diverse background includes roles in data consulting, the oil and gas industry, and finance. Wendy's international legal education and experience as a business owner give her unique insights into client challenges. Trained in mediation and arbitration, she focuses on reducing litigation-induced stress, making her a valuable ally in legal disputes.