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.