Choosing the Right Path to Resolution
At Crease Harman, we understand that every dispute is unique. While our firm has a long history of vigorous advocacy in the courtroom, we also recognize that trial is not always the most effective route for every client. In British Columbia, litigants are often faced with the decision of whether to pursue mediation, and in some circumstances they are required to do so under the court rules. A proceeding may continue toward trial while the parties participate in mediation, whether undertaken by choice or as required by the litigation process.
Understanding the difference is critical for managing both your costs and your risk.
The Fundamental Difference- The primary distinction lies in control.
- Trial: A judge (and essentially a stranger to your dispute) hears the evidence and imposes a binding decision. You lose control over the outcome the moment the trial begins.
- Mediation: The parties retain control. A neutral third party (the mediator) facilitates a negotiation, but they cannot force a decision. A resolution is reached only if both sides agree to the terms.
Cost and Efficiency Trials are inherently expensive. They require extensive preparation, including document discovery, witness preparation, and often weeks of court time. The procedural requirements of the BC Supreme Court are rigorous. Mediation, by contrast, can often be concluded in a single day or less. While you still need legal counsel to prepare and attend, the overall investment is significantly lower than a full trial.
Confidentiality vs. Public Record British Columbia’s court system is open to the public. Judgments are published online and can be read by anyone, including competitors, neighbours, or the media. Mediation is a private, confidential process. The discussions that happen in the mediation room are ‘without prejudice’, and cannot be used against you in court if the settlement fails. This makes mediation particularly attractive for disputes involving sensitive commercial data or family matters.
The “Notice to Mediate” It is important to note that in BC Supreme Court civil actions, mediation is not always voluntary. Under the Notice to Mediate (General) Regulation, one party can often compel the other to attend a mediation session. This is a powerful tool we can use to bring a reluctant opposing party to the negotiating table before trial costs escalate.
Which is Right for You? Mediation is generally the preferred first step for most civil disputes, including contract disagreements, estate litigation, and personal injury claims. However, trial remains necessary when legal precedents need to be set, or when the opposing party is entrenched in an unreasonable position.
The lawyers at Crease Harman can assess your specific situation and advise whether a negotiated settlement or a courtroom judgment will best serve your interests.
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