Mediation is essentially negotiation with a facilitator, and there are a great variety of styles and approaches depending upon the mediators selected. Many mediations arising out of a legal dispute are conducted on the basis of predicted legal outcome. If litigation has been commenced, most Canadian courts have dispute resolution processes available without charge, which enable the parties to have a judge preside over the mediation meetings. Litigation counsel can provide advice on the type of process and mediator most suitable to the circumstances. Successful mediation requires active participation by the parties, in addition to their counsel, and the parties' representatives must have clear settlement authority or the ability to contact someone with authority immediately.
Timing is also important.
The parties must have sufficient information to make full submissions to the mediator, and to critique those of the other party. Therefore, mediation must usually await the exchange of documents and examinations for discovery, except where the facts are known by both parties and not in dispute. There are federal, provincial and international rules for arbitration which can be adopted for the basic process and rules, modified as the parties may agree. Where the dispute involves technical issues, the parties may select an arbitrator who is an expert in the area of dispute. The flexibility of arbitration allows much more control over the time line and expense than is typically possible in litigation before the courts.