Mediation — It’s a Matter of Choice

There’s an editorial in the print version of the Globe and Mail of September 16th entitled “Divorce – Redundant coercion”.  In the online version, the header gets more to the point of the commentary, “Don’t tell us how to divorce”. Here are key excerpts:

Ontario Chief Justice Warren Winkler […] is proposing that divorcing couples be required to try an alternative dispute-solving mechanism before coming to court.

The coercion would be redundant. The justice system all but coerces people now into finding an alternative to the courts. The costs of a lawyer and legal filings are huge. The loser may be ordered to pay the winner’s legal costs, too. A family breakup whose details were private is suddenly quite public, in most provinces, once a court action begins. Legal battles have a way of spiralling into endless acrimony. With all these built-in disincentives, it’s a wonder that any couple insists on having a trial before a judge…

[…]

Alternative forms of dispute resolution are far from ideal. They can cost lots of money (and no little bitterness), too. Mediators usually charge $200 to $600 an hour. The mediator’s qualification may be as slight as a three-day course. On top of that, each party is supposed to have a lawyer “shadowing” the process, at $300 to $600 an hour. As an alternative, it’s a matter of personal choice. A non-alternative alternative is coercion gone too far.

The issues raised by the editorialist in the last paragraph relating to mediator’s fees, mediator competence and lawyer’s fees are all too real.  I will confine myself here, however, to making two additional points.

I can’t help but think it’s a pity that mediation is all to often seen as an alternative to litigation because of the latter’s shortcomings, inefficiencies, costs and psychological impacts.  There is an altogether more positive case to be made for mediation in relation to the promise it offers to people in conflict, namely an opportunity to create their own customized arrangements to handling the difficult situation they’re in rather than relying on a ‘default’ legal model of general application.

Choice or self-determination is central to all forms of mediation.  It is ironic that consideration may be given to mandating (i.e., removing the choice of) a dispute resolution process that holds choice and decision-making to be paramount

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