Negotiations, Settlement – Duties of a Paralegal

By Catherine Hyde, Paralegal

I offered to buy my daughter birthday plates and supplies for the upcoming 5th birthday party for my granddaughter.  I knew she liked anything princess so asked if I should pick up some plates with that theme.  I get a text asking if there are any superheroes.  I am curious about this so asked if there were princesses who were superheroes –I’m thinking “Wonder Women”. Other texts went back and forth leading me to total confusion.  Eventually we spoke on the phone and lo and behold she is having the class over so there are boys and girls so she needed superheroes for the boys and princesses for the girls.  As a girl of the 60’s I am somewhat opposed to such gender specific types, however, that is another story.  My point here is that sometimes it is just a matter of sitting down and talking with the other individual in order to clear up the misconceptions which have led to a Small Claims Court Claim or any litigation for that matter.

As paralegals we are required pursuant to the Rule 3(5) and (6) of the Rules of Conduct to “advise and encourage a client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis.”  In conjunction with this, a paralegal is to “consider the use of alternative dispute resolution for every dispute” including advising the client of the options.

The options for alternative dispute resolutions include negotiation, mediation and arbitration.  What are these terms?  Negotiations relate to discussions between the parties or their representatives in an attempt to come to a reasonable resolution of the issues at hand.  If the parties are unable to negotiate a settlement, and a Claim is issued, the parties still have an opportunity to continue to negotiate. Once a Defence is filed, a Settlement Conference is set.  At the Settlement Conference the parties again have an opportunity to discuss the issues and attempt to resolve the matter.  It must be remembered that the best settlement is often where no one party is completely happy but both can live with the resolution.  At any time the parties can also agree to seek the assistance of a mediator. Mediation involves the parties discussing the matter with a qualified mediator who acts as a neutral third party. A mediator cannot take sides or give legal advice but will help the parties stay on track, ensure one party does not intimidate another, and ensure the parties have equal input into the discussions. A report will be made as to the proposed agreement and the parties’ representatives can then finalize or tweak the agreement. If mediation fails, the parties can continue through the Court system to a trial, or if they wish, they can arrange for arbitration.  At arbitration, the Arbitrator will assess the positions and make a determination which will be binding upon the parties.  There is always an opportunity to sit down and discuss the issues that led to the dispute and see if it can be resolved.   Your paralegal should advise you of these opportunities and ensure that every opportunity to negotiate a settlement is taken in order to minimize the costs to all parties.

Now I’m not sure who is going to win the battle between princesses and superheroes but no doubt a little mediation will be required on the part of my daughter to ensure everyone has lots of fun.  Next time before you leap directly to a Plaintiff’s Claim, make sure you are taking a moment to see if a discussion, with the assistance of your representative, can perhaps lead to a resolution of matters as after all it could be a simple matter of miscommunication or misunderstanding between you and the opposing party.

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