Babies and Bath Water

Mediation is frequently promoted on the ground that it reduces the cost and delay inherent in litigation, and in this way it increases access to justice.

Leave aside the issue of whether mediation reduces cost and delay. Does it increase access to civil justice?

If “justice” is the impartial application of the law to evidence in accordance with the rules of procedural fairness, the answer is obviously, No. In mediation the parties resolve their dispute through agreement.

What mediation can do however is increase access to affordable dispute resolution.

This of course is a worthwhile goal, but it is important to remember that it is not the same thing as increasing access to justice.

The common linkage today of ‘mediation’ and ‘access to justice’ indicates that we are in danger of conflating the two: that we may be slipping into the habit of thinking mediation delivers justice.

There is a bright line between mediation and traditional civil justice. To put it in commercial terms, they are very different products.

Mediation is being embraced in many common law jurisdictions to solve the problems of civil justice. But in our exuberance for dismissed actions today, are we keeping an eye on the consequences for tomorrow?

We are entering a world in which the majority of Ontario civil litigation lawyers in their careers will likely never conduct a trial to judgment. The corollary is that judges will preside over fewer and fewer civil trials. As the ranks of civil trial counsel and judges thin out, the trial will atrophy as a civil dispute resolution option. As more disputes are mediated, the flow of civil judicial precedent will decrease.

Unquestionably, the cost of civil justice is now beyond the reach of most individuals, and a large swath of corporations too. It is clear that something has to be done about it.

But in mediation should we see salvation? Or are we throwing the baby out with the bath water?


  1. Interesting post on a topic that should be discussed.

    A week or so ago in The Washington Post, there was an article: “Mediation can bring justice with no need for a trial“.

    I am a bit biased here since I am a mediator, but “access to justice”, in terms of having a matter adjudicated in Ontario, does not exist for the average litigant. The legal system has priced itself far beyond accessibility.

    The “vanishing trial” is really about “vanishing resources”. Will this change? Hopefully, but in the meantime in terms of civil litigation, mediation is a tool in the litigation lawyer’s toolbox, no more, no less. Used properly it can be very effective.

    Whether “mediation” = “access to justice” may not be as important as “mediation = access to dispute resolution”. Mediation may not meet the fairness test in terms of procedural justice, but does it need to? The settlements achieved through mediation do meet the parties’ ideas of “fairness” and surely that is an important plus.

    Up to 90% of cases started in Ontario’s courts are resolved without trial, mostly through negotiated settlements. With that in mind, mediation and litigation are not an “either/or” choice. They are complimentary processes.

    Some cases need to be litigated, most can be settled. By settling cases and taking them out of the legal system mediation actually facilitates rather than impedes litigation for those remaining cases by freeing up judicial resources to deal with them.

    The lack of access to justice is a real issue, but mediation is not part of the problem, it is part of the solution. Mediators and lawyers must work together to improve dispute resolution processes.

  2. I disagree with the definition of justice given here: ‘“justice” is the impartial application of the law to evidence in accordance with the rules of procedural fairness’. That’s a definition of a good litigation system. Justice is a system for substantive not just procedural fairness. I think, as Colm said, that the parties are a good judge of what is fair for them. So mediation can produce a just resolution, at least as often (I would think) as a trial judgment (or final appellate judgment).

    The distinction between ‘law’ and ‘justice’ is a commonplace, so application of the law does not necessarily produce justice. We try of course to ensure that our law IS just, and that its application is just, but if the parties are willing to accept some other outcome, or the same outcome reached by a different process, then it’s hard to say that that is not a just resolution.

    When parties settle because they are out of money, energy or time, then one does not get a just resolution except by chance. However, mediation increases the chances that a settlement will be principled and interest-based (both), rather that simply accepted as an exit from a difficult process.

    I see statements about the decreasing numbers of trials, but also hear that in Toronto it takes six to eight months to get a simple Rule 20 motion to dismiss heard. What are all the judges doing, if not trials? Other motions?

  3. First, the facile answer:

    I suppose it all depends how one defines justice, no?

    If one defines justice as including any solution to a dispute that the parties agree to (and that the state in which they reside permits them to enter into – noting that if the state never becomes involved in the enforcement of any aspect of the agreement then its illegality is irrelevant) then meditian and other forms of non-judicial dispute resolution are part of the justice system. In that view of the meaning of justice, in principle anything that increases the number of consensual dispute resolutions advances the interests of justice.

    Next, the more thoughtful, if only because it took me longer to type.

    I believe that Mr. Brannigan’s reply misses what I take to be a key point in Mr. O’Sullivan’s message.

    Mr. Sullivan mentions litigation but his point is about a key difference between the core principles of the traditional justice system and the core priniples of the alternate dispute resolution system called mediation. Mr. O’Sullivan, I believe, is not comparing the processes of litigation and mediation; nor is he taking issue with

    In mediation, the parties can resolve their dispute on any basis they want to, in theory even something illegal. Some illegalities might prevent that agreement being enforced by a court in the future, but that’s a different issue.

    The parties can’t fashion their own remedy under the justice system. The justice system defines the remedy. Process and content are inextricably related parts of the justice system.

    ADR procedures such as mediation are now an accepted part of the modern concept of a valid justice system. As such, Mr. Brannigan is correct to say that affordable, workable, ADR systems increase access to justice. Mr. O’Sullivan is also correct to imply that, in a justice system where the content is based in part on “judicial civil precedent”, on judges providing new solutions to new problems created by changes in society, a reduction in the number of decided cases, precedents, could be a problem.

  4. John, just want to welcome you to Slaw! I’m looking forward to your future contributions.


  5. As a student-at-law who came from a political science background, I find this distinction between the justice system and mediation very confusing.

    Yes, the justice system defines the process and the remedy. It’s set. But you can’t stop there. You have to ask “by whom is it set?” It was not handed down from above. The justice system is administered by laws written by and judges appointed by democratically elected governments. That democracy means that the individuals subject to the rules have had input into them.

    So the difference between the justice system and mediation is one of degree. The parties have more direct input into the system and its outcomes in mediation. The input is less direct if they go to the courts, but it is still there. That is why the courts have legitimacy.

    And the fact that the outcome of a mediation can be inconsistent with the law is not a distinguishing factor either. Plenty of court decisions are inconsistent with the law. That’s why we have appeal courts.

    Mediation is justice, or I don’t know what justice is.

  6. Thank you all for your comments. Colm’s Washington Post article is a good illustration of the value of mediation. I think we are all agreed there is a vital role for mediation. But we must keep the rights-based system system alive, or there will be no means of asserting the rights. I suspect we also agree on that.

  7. Jason,

    No, it’s a difference in kind. If you haven’t been told that much in law school, you need to have a talk with those who are teaching you about whatever it is they’re teaching you.

    ADR means alternate (or alternative) dispute resolution; not alternative justice disposition.

    Hiring combatants to fight it ought on the field of honour, on the premise that a deity will ensure that right win is also alternative dispute resolution.

    Agreeing that a roll of the dice will determine who gets what is also ADR.

    Your point about appeal courts misses the point. Appeal courts are there to correct a decision so that it’s the right decision on the case based on the facts that were admitted. A correct result is one that we assume is consistent with applicable law.

    The “correctness” of the decision, in that sense, is irrelevant to the agreement the parties reach on mediation.

    Read up on the difference between corrective justice explanations of, say, tort law and “law and … [blank]” explanations. Maybe that will help you understand the difference.

    Of course, if you’re from the “law and … blank” stream, you may be of the view that corrective justice theories are bunk, and working from that stream could get you to your view that the difference is one of degree.


  8. As a litigator for a great many years I cannot recall the last time I thought about justice or whether something was a just result. The question I most often ask clients at mediation is can you work with the result. The truth is given inequities between litigants, the frailties of most processes and yes differences in the skills of counsel and judges/mediators those seeking a just result will be sadly disappointed. Mediation clearly has a role to play in resolving disputes; so do trials. The problem has become that the expense in the system precludes all but a few cases from being tried even those that should be. The thought that because parties agree to a result rather than having one imposed makes it more just is not the reality. Neither, however is the fact that a judge or jury imposes a one size fits all result on litigants at the end of a trial a matter of justice.

  9. Gary, Thanks for your comment. My point is not the comparative merits of the two systems; just that unbridled promotion of mediation might mean the loss of the centuries-old rights based system of dispute resolution.

  10. I don’t see any danger of ‘losing’ our system of determining rights authoritatively through judges, or at least not because of mediation. Through high costs and obscurity, maybe. Mediation does not always succeed, so there are always some cases that need more authoritative resolution. Not all parties to mediation want to trust or pay for an arbitrator.

    Students of mediation certainly believe that some kinds of dispute should not be mediated, notably ones where one party is asserting a clear right, especially a right given by law to a vulnerable party. I recall debates in the early 90s about whether a tenant should be allowed to mediate a dispute with his/her landlord, where the landlord has failed to provide basic amenities required by law. How fair is a compromise in such a case? The landlord should be compelled to do what the law says.

    And most women’s advocates are resolute against family mediation when the woman has been abused.

    That said, the more the adjudication system is inaccessible because too costly or too slow or too obscure, the more appealing cheaper, faster and simpler alternatives will appear. In many many cases, those alternatives can produce a ‘just’ result as often as the higher-priced brand. In some cases, not so much.

  11. There are certainly business cases that are being dealt with through arbitration with the ultimate loss of the precendential value of those decisions however notwithstanding predictions of a tremendous increase in such cases I don’t think it has happened yet. As John G. has indicated the access to the courts issue is in fact a much more glaring problem. The number of lay litigants in courts has skyrocketed. Ultimately I beleive there are still enough cases getting decided by judges to advance the law. I don’t see our appellate courts going out of business any time soon.

  12. Antonin I. Pribetic

    Litigation is a process.

    Justice is an ideal.

    Access to justice is a loaded phrase.

    Equal access to justice is what we should be talking about.

    Judges and civil reform advocates are quick to point an accusatory finger at lawyers about the high cost of litigation and systemic delay. The latest critique is by Chief Justice McLachlin who in Kirk Makin’s Globe & Mail piece “Access to justice becoming a privilege of the rich, judge warns“, notes that:

    The measures they debated to bring justice back to the middle class ranged from creating a universal legal insurance plan to legal hotlines and panels of legal experts capable of providing advice online.

    Here’s a solution. Revoke the “loser pays” cost indemnification system.

    That’s right. You heard me.

    Reduce the financial burden on clients who want access to the courts by removing the opportunity cost of paying adverse cost consequences if unsuccessful. If the Chief Justice is correct that the “middle class cannot hope to pay legal fees that average $338 per hour, leaving them little option but to represent themselves in court or go away empty-handed”, the fault is not lawyer’s average fee rates. There is a thing called free market capitalism: just find a lawyer who charges less. Competition is a good thing.

    Here’s my previous take on the subject which appeared in The Canadian Lawyer Magazine online: “If it ain’t fixed, then break it: pro se litigants, civil justice reform, and the economics of law”

    By the way, just what is the average judge’s salary nowadays?