Mandatory Mediation (Reprise)

My post here on 12 November “The Reasonable Refusal to Mediate” prompted a number of spirited comments in support of mandatory mediation, for which I am grateful.

One commentator cited an impressive study that shows lawyers tend to be over confident about their positions in litigation and as a result clients can make poor decisions based on lawyers’ unrealistic case assessment. Another study shows the parallel worlds lawyers and clients live in: lawyers are motivated financially; clients may be motivated primarily by an apology or an explanation.

If lawyers tend to be over confident about their cases, the solution is surely mechanisms that improve accuracy in estimating outcomes, such as second opinions. Mediation might do this, but only if the mediator has the experience necessary to offer a second opinion.

A very effective mechanism for keeping lawyer’s over confidence in check is the pre-trial conducted by experienced, sitting judges. A judge has the authority to tell a lawyer if the lawyer’s prognosis is too rosy. Pre-trials are, rightly, mandatory in Ontario.

As to parallel worlds and conflicting interests, the same problem exists in the mediation environment. The mediator too inhabits a world parallel to the parties. The mediator’s goal is settlement. The higher the settlement rate, the more sought-after a mediator becomes. Not any settlement is in every parties’ interest. It is not part of the mediator’s job description to ensure that the settlement is equally fair to the parties.

In defending mandatory mediation another commentator correctly says the point of mediation is to get the clients talking about what their real interests are. Mediation creates the opportunity for the client to be heard, and when it is mandatory, it eliminates the fear that offering to mediate will be interpreted as a sign of weakness. Furthermore, settlement even among unwilling parties to mediation has been reliably reported to be as high as 60 %.

What about the 40% who have decided their real interests are the enforcement of their legal rights? For example the defendants in my 12 November post who refused to pay $37 million dollars or anything like it for damages they believed did not exist, for a breach of contract which they denied. (They were right.)

How many of the unwilling 60% who settled would have done better at trial? Presumably half of the cases that were zero/sum.

It may be that in some disputes one party will be content with the orange and the other only needs the peel, or a party only wants an explanation which the other is happy to give. But there are many disputes where this is not the case. For them mandatory mediation, on top of settlement discussions and pre-trial, diverts energy, drives up cost and all too often subjects parties who want to have a judge hear their case in the calm atmosphere of a courtroom, to frenzied pressure to settle.

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