Mediation & Litigation Have Different Objectives

One of the strong arguments that advocate the use of mediation is tied to the public policy issue of access to justice.  Simply stated, many cases on the court docket can be dealt with more efficiently in mediation, thereby freeing up the justice system to deal with other cases, and easing bottle-necks and backlogs in the administration of justice.  This has led many jurisdictions to adopt rules that make mediation mandatory before legal actions can proceed before judges.

But what happens when mandatory mediation leads to backlogs in the administration of the mediation process itself?

This is a question raised in this very insightful post by Rick Weiler on the Kluwer Mediation Blog:

There was a time in the 1990s when mediation was perceived by some as a panacea to the problems of overly taxed dispute resolution systems – be they Courts or administrative regimes. This perception was fed by enthusiastic if, in hindsight, somewhat naive promotors of mediation (yes, guilty). What perhaps was missed was the basic economic reality that if you lower the barriers to pursuing disputes you will increase the number of disputes coming into any system. Or, to misquote Shoeless Joe in Field of Dreams, “if you build it, they will come.” (the actual quote is “if you build it, he will come.” but the misquote seems to have stuck.)

The failure of policy makers in Ontario to adequately resource the FSCO [Financial Services Commission of Ontario] to deal with the volume of benefits disputes has led to the situation seen on display in this decision [Cornie v Security National, 2012 ONSC 905 (CanLII)]. Justice Sloan suggests a number of steps that could be considered to alleviate this situation including seeking increased resources for this mediation regime.

Where are those resources to come from in this day in age? Well, as we say in mediation, that’s a good question. Let’s talk about it.

And, in this thoughtful comment (in French) on the LinkedIn site (sign-in required), lawyer Jean-Frédéric Bleau raises the following factors:

Access to justice should not be achieved at any cost. Courts issue rulings of settlement on legal actions, while mediation allows parties to explore their differences. The objective is not the same. The negotiation model should not be confused with the mediation process.  [my translation]

I couldn’t agree more with Me. Bleau.  For my own views on the distinct value of mediation per se, please see my previous post, How Mediation can Help.

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