The new team!

Monday, February 27, 2012

Mandatory Mediation: Making Court the Alternative


A high likelihood of reaching an agreed settlement is inherent in most voluntary mediations. Parties that have agreed to mediate have taken the first step towards resolution by agreeing to discuss and to mutually work towards a settlement. One of the major challenges experienced by the CORE clinic is raising awareness of the services offered by our organization. Litigation remains the preferred dispute resolution mechanism, and parties often fail to voluntarily consider any alternative.

In an attempt to cut down on the congestion in the courts governments in Ontario, Alberta, and British-Columbia have implemented a mandatory mediation process in certain dispute areas, before matters can progress to trial. There has been much debate as to whether mandatory mediation actually contributes to expedient resolution of disputes, and if it in fact eases the overwhelming burdens placed upon our courts. Critics of mandatory mediation have labelled it as an unnecessary hurdle on matters destined for trial, claiming that most disputes settle themselves before trial. Others submit that mandatory mediation will be beneficial only in certain circumstances.

It is argued that only situations in which both parties agree to mediate can benefit from mandatory mediation, as both sides are forced to participate. As a result, neither party’s interests are weakened by having to introduce the option. A bias is introduced however, when one side is unwilling to undergo mediation. A mediator’s neutral position will be compromised from the outset because they will be an advocate of a process in which only one party believes. Additionally, in cases where neither party is willing to undergo mediation, it is less likely that participants will come to an agreement. They will instead work towards returning to litigation. Once the atmosphere of the mediation is perceived as negative, it is argued that the parties are irrevocably compromised, and any dialogue will be met with scepticism or distrust. An aggravating factor in this dilemma is that in most jurisdictions the only mandatory component of mediation is attendance. Parties are free to show up to mediation and engage in no serious dialogue.

The results of mandatory mediation programs however have been encouraging. Angela Mallard is the Court Mediation Program Manager of Mediate BC. She deals extensively with small claims mediation. Her statistics demonstrate a high degree of approval from parties that have been through mandatory mediation with an average satisfaction rating of 4.33 on a 5-point scale. Over 90% of participants indicated a willingness to use mediation again if they found themselves in another conflict.

Similar findings were published in an evaluation of Ontario’s Mandatory Mediation program. The findings in the report show significant reductions in the time taken to dispose of cases, decreased costs to litigants, and a higher proportion of cases being completely settled earlier in the litigation process. There is also a growing body of evidence showing that mediation is less stressful for litigants, and 'process satisfaction' levels for parties in mediation tend to be very high.

Voluntary settlement should always be the primary objective when dealing with disputes. It is the responsibility of lawyers, as well as their clients to exhaust all available options before burdening courts with their disputes. Mediation provides a more structure approach to reaching these settlements. Ms. Mallard believes that mandatory mediation can be a catalyst towards changing a culturally entrenched reliance on imposed remedies. Ms. Mallard is not the sole advocate for an increased emphasis on mediation. I had the privilege of attending a lecture recently given by Supreme Court Justice Morris Fish at the University. He was asked how the overwhelming demands on Canadian courts could be alleviated. His response was a greater dedication and reliance on alternative forms of dispute resolution such as mediation. By providing a positive experience to parties who undergo mandatory mediation, it is hoped public consciousness of its advantages will grow and increase the willingness to mediate at a macro level. Forcing mediation brings it to the forefront of public consciousness and encourages a shift towards more collaborative resolution of civil disagreements. 

Monday, February 13, 2012

Ethics in Mediation

It’s Law in Context Week for first year law students at the University of British-Columbia. The objective of this course is to provide an introduction to legal ethics and professionalism. Though many parallels exists between the ethical requirements of a lawyer and mediator, I wanted to explore the field of ethics specifically in the context of mediation.

Instances of clear cut ethical dilemmas tend to be scarce and even then, don’t require much thought or contemplation as to which path is right and which is obviously wrong. There are few lawyers that would not classify stealing from clients, or hiding evidence as unethical conduct. In mediation and other fields of law, issues are more intricate and subtle, making ethical decisions a tough choice between right or wrong that aren’t as clearly defined. Certain ethical concerns often arise in the course of mediation, for instance, at what point is the ability of an individual to mediate comprised by a conflicting interest, or what degree of consideration should be afforded a third party affected by the outcome of mediation.

Professor Ellen Waldman discusses the ethical obstacles facing mediators as they pursue successful mediation in her book, Mediation Ethics: Cases and Commentary. Professor Waldman submits that there are underlying principles likely to be in tension when mediators confront cases challenging their individual ethics. These principles include an attempt to ensure procedural fairness used to reach the result, the right of the disputant to make choices based on personal beliefs free of coercion or constraint, and the substantive fairness of the mediated outcome.  

Mediation, unlike litigation assumes that parties should retain control over how their conflicts are presented, discussed, and resolved. Unfortunately, situations can arise where it is questionable whether one party can be said to actually be exercising their autonomy. Professor Waldman cites both internal threats, such as blinding rage that subvert the decision making ability of the individual and situational threats that can coerce behaviour. If one party due to their frailties is manipulated by the other side, can it be said that their behaviour is autonomous and at what point should a mediator be compelled to intervene?

Furthermore, at what point does the fairness of the result matter? Some practitioners and scholars submit that questions of fairness remain only a consideration in evaluating the procedural, rather the substantive result. Mediators tend to be uncomfortable with the role of justice arbiter, but what happens where a weaker party due to their frailty is willing to accept substantially less than what they could receive otherwise in court? Is there not a point at which the autonomy and procedural fairness underlying mediation gives rise to the substantial fairness of the parties?

These are difficult questions that lack a definite and widely accepted answer. The context of each mediation is an inherently important factor to consider before arriving at a final decision. Reflective practitioners describe conflicts in ethical norms and propose solutions that are different in different contexts. For practitioners, it remains vitally important to take account of the context and engage in a thoughtful consideration of neutrality, impartiality, conflict of interest, as well as many other ethical concerns when conducting mediations. 


 As always if you feel that you have an issue that could benefit from mediation contact the CORE clinic at UBC either by email at coreclinic@hotmail.com or give us a call at 604-827-5024. Have a great week!

Wednesday, February 1, 2012

Making Mediation Work in Employment Law


            Recently as a volunteer for the Law Students Legal Advice Program, I met with an individual who claimed he’d been wrongfully dismissed. In describing the facts of the case, I was struck by the nature of the remedy sought. This individual was not overtly interested in financial remuneration; instead they were primarily interested in an acknowledgement that the dismissal was unjustified, an opportunity to discuss the dismissal and strangely enough a letter of reference. The case eventually was resolved without the need for a legal intervention, something that is frequently recognized as the most efficient outcome for both parties.

            In conflicts between employees and employers the impacts of litigation can be readily apparent. We have repeatedly talked about the exorbitant costs of litigation and the time required to reach a resolution. The expense is even higher when considered in a commercial context, in light of the disruption of normal day-to-day activities and the time that must be devoted time to help prepare a case.

            In addition, litigation risks detrimental affecting the culture of an organization. Word of mouth is often cited as critical for successful employee recruitment. The stigma of a company’s involvement in protracted legal battles with an employee or employees, can cause irreparable damage to its reputation. A company embroiled in fierce legal battles will not be a choice destination for top talent. In addition to damaging the company’s image in the eyes of potential employees, a legal dispute with an employee leads to an adversarial atmosphere. A dispute can divide an organization into distinct camps siding either with management or the employee, which reduces morale among existing workers. It fosters more of a normative relationship between employees and their employer, rather than a more effective emotional attachment or identification with the organization. 

            As a result more and more companies are instituting employment policies that include dispute resolution mechanisms, which may start with an internal complaint and investigation, peer review, non-binding mediation and then arbitration. Often the line between right and wrong is not clearly identifiable and resolving the issue combatively through litigation can lead to all or nothing solutions. When one side denies culpability, the other typically will respond with an unwillingness to enter into any type of settlement.

            Mediating employment disputes offers several benefits, for instance mediation covers a broader range of issues. Existing dispute resolution mechanisms simply aren’t equipped to address the full range of issues and conflicts that arise. Employment disputes are fundamentally conflicts in a relationship. Mediation allows for the necessary expression of the emotional aspects of the conflict and provides a framework for creative problem solving. Mediation will often conclude without any lingering animosity, as both parties will have contributed to the outcome. The parties are encouraged to consider creative remedies such as training, job modification, letters of reference, letters of apology, or new open channels of communication in resolving these complaints, especially when they involve currently employed co-workers.

            As always if you feel that you have an issue that could benefit from mediation contact the CORE clinic at UBC either by email at coreclinic@hotmail.com or give us a call at 604-827-5024. Have a great week!