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Benefits of Mediation

“Everyone who is here today believes fully and passionately in their case.  And they believe that I will also believe in their case as strongly as they do  – that I couldn’t possibly feel any other way…I call this the rose coloured glasses effect…I guarantee that at least one party will be disappointed in my decision”

 

So began a recent Landlord and Tenant Board hearing under the direction of Landlord and Tenant Board Member Mr. Sean Henry.

rose coloured glasses

Mediation at the Landlord and Tenant Board

Landlord and Tenant Board hearing dockets are full of unrepresented parties – particularly tenants – so it is customary for the Board Member to provide some information about the process before the proceedings begin.  Each Member has their own style and may address different issues on different days based on the audience.  However one constant is an announcement of the availability of mediation for interested parties.

Following the Board Member’s introduction, the mediator will provide a more scripted explanation.  The Board provides mediators to assist parties to attempt to settle their case without the need for a hearing.  The service is provided to parties at no charge, it is voluntary, and anything said in mediation is confidential.  If parties are not able to resolve their differences through mediation, they return to the Hearing room for a hearing.  A party does not give up the right to a hearing by attempting mediation first.  If one party breaches the terms of a mediated agreement, the other party can reopen the matter at a hearing.  When the agreement involves an eviction order, the agreement is recorded as an order that is equally enforceable as an order made at a hearing.

Mr. Henry, the Board Member at this particular hearing, was particularly passionate in his explanation of the benefits of mediation.  His enthusiasm and fire reminded me of the sermon given by the Bishop Michael Curry at the recent Royal wedding.

In addition to the basic mechanics, he highlighted some emotional and psychological benefits of mediation that are sometimes overlooked.  These include the possibility of understanding the position of the other party and coming to common ground and the empowerment of controlling your own destiny in even a small way.

Expanding the Pie

When an adjudicator makes a decision, there may be other issues between the parties that the Board cannot address.  At the Landlord and Tenant Board, mediation can include issues that could not otherwise be considered by the Board.  For example, a party might have a complaint that happened too long ago for an adjudicator to consider it.  Or perhaps an apology or promise of changed behaviour is more meaningful than amonetary award.

This is an example of the expanding the pie principle presented in the classic mediation book Getting to Yes by Fisher and Ury.

Two sides to every story

In addition to speaking to the value of mediation, Mr. Henry addressed a common issue that can be difficult for parties to understand: There is (almost) always another side to the story and the adjudicator may choose the other side over your version.

scales of justice - unbalanced

How a Party views their case

In some cases there is clear documentation that proves one side’s case and leaves no room for reasonable dispute.  However most cases that proceed to a trial or hearing aren’t so straight forward.  Usually each party will have an argument that they believe in strongly.  Sometimes the matters in dispute are just financial – for example how a partially completed renovation should be valued or on what date a contract should be considered cancelled.

 

 

 

 

scales of justice - balanced

How the Adjudicator views the case

But the decision maker will almost always have to decide at least part of the case based on who they find to be more credible.

 

For example, a customer may be adamant that the contractor they hired failed to complete the job properly while the contractor may be just as adamant that the customer received exactly the product they requested and is unfairly withholding payment.

Or a customer may feel a product is defective while the manufacturer or retailer believes the customer misused the product or the damage is properly characterized as normal wear and tear.

A verbal contract can be disputed by any party.

Similarly, payments made in cash with no receipts make for difficult arguments.

Don’t let inexperience and ‘rose-coloured glasses’ give you a nasty surprise.

On this particular day at the Landlord and Tenant Board my client was arguing they had made cash payments.  Unfortunately there was no documentation to support their testimony.  Before the hearing my client asked how the Board member could possibly believe the other party over them.  After all, the other party had no evidence either.  My answer to my client mirrored the comments of the Board Member, Mr. Henry, at the hearing – every party believes fully in their own case and cannot conceive that the Board member might question their version of the story.  However when both parties have this belief, one will always be surprised and disappointed by the result.

Part of legal representation is assessing the merits of a case and the likely chances of success.  When you retain Carr Paralegal to represent you we give you an honest assessment of your case and identify the necessary steps to present your case in the best way possible.  It may not always be the answer you want to hear as a new client, but it will save you much time and expense in the long run.

 

Carr Paralegal provides represents clients in Small Claims Court (civil litigation up to $25,000) as well as both landords and tenants at the Landord and Tenant Board (Residential Tenancies)

We can be reached by phone at 905-541-6142 or email at info@carrparalegal.ca.

 

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