Tweaking mediation

21 February 2017

Civil justice resources should be deployed so that there is a gravity-assisted, downhill run to the courtroom where disputes will promptly be determined by a judge, if mediation fails. Unless the parties decide otherwise, failed mediation and the judicial determination step should be linked.

There can be no doubt that promotion of the settlement of civil disputes through mediation, is a wise policy.  But it must not effectively be the final step in the civil justice process.

If parties are at the point of emotional and financial exhaustion by the time they reach mediation, it will not be practical for them to continue on to a hearing when no settlement is reached.

In that situation, effectively, they must settle.

Such a situation opens the door to exploitation, unfairness and injustice.

What if the price of peace is too high?  What if one party is both unreasonable and wealthier than the other?

Caught in that dilemma the reasonable party’s option is either to accept a settlement that does not fairly reflect the chances of success at a judicial determination, or trudge on uphill through mud and obstacles rolled in the way of getting a matter before a judge for determination.  These obstacles often include: mandatory wait times before setting down for hearing; judicial mediations; pre-trials; second pre-trials; and even “mid-trial pre-trials”.

Such obstacles increase the cost to the reasonable party, and therefore increase the pressure to accept an unfair settlement. They work in favour of an unreasonable party.

Not only would linking failed mediation to prompt judicial determination focus the minds of the parties at mediation, it would tend to improve mediation by curbing unreasonable positions, and creating real, more affordable options for parties faced with unreasonable adversaries.

“Mediation? The most expensive sandwiches I’ve ever eaten”

17 October 2016

This was the eye-catching title of an evening symposium held at a London UK barristers’ chambers earlier this year.

Anyone facing litigation – whether in business, or private life – is confronted with an awful trilogy: unpredicatable expense, with an uncertain outcome, lasting a period of time that cannot be determined.

Mediation arose because of the increasing failure of the usual channel of resolving civil disputes – the civil justice system.

It was taking too long to get a dispute to the point where it could be resolved by a judge.  The “one size fits all” procedure was unwieldy and expensive.  The interests of the lawyers and their clients were misaligned – the longer a case took, the more it would cost.

Mediation promised a faster, less confrontational, therefore less expensive approach, based on resolution through agreement of the parties.

The major difference in the mediation model is the absence of a neutral person who decides on the parties’ rights.  But at what price do we abandon the conventional focus on rights, as a method of resolving disputes?

Where the parties to a dispute are sophisticated and  motivated to reach agreement, mediation can work well.

But if one party seeks to postpone the day they will be required to pay a judgment, or is belligerent, or where there is pronounced inequality of strength between the parties, mediation, by creating an extra step in the process, in which there is no referee, can hurt the party who may have the stronger case.

Mediation is not appropriate for all disputes, any more than blood-thinners are the best treatment for all ailments. Indeed, in certain cases it is precisely the wrong approach.

The causal link between a healthy economy and a robust judicial system in which disputes can be determined predictably, efficiently and affordably,  is self-evident.   The role of authoritative, neutral person, who decides a dispute on principles of fairness, is the baby that must not be thrown out with the bathwater.