Stunting the Common Law

Always nice to see comments from blog readers. They are the voice at the other end of the telephone line, the question from the Bench. They reassure you that you are not talking to yourself.

Even if the comment you elicit is only that you are being “tiresome”, as my post did last week, at least someone has gone to the trouble of putting fingers to key board.

My posts are not really “rants against mediation” but rants in support of the preservation of affordable judicial ajudication, as an option.

I stress the word “option”. I am not calling for a ban on mediation. Nor am I advocating mandatory trial to judgment with no right of settlement. Let parties choose, with advice from their lawyers.

My objection to our present civil justice system is that it favours mediation. An obvious example is the mandatory mediation rule.

It also puts obstacles in the path of trial that cause unnecessary delay and expense e.g. the arcane rules on setting down. (Justice Brown’s paper at the upcoming OBA Institute illustrates the issue.)

If parties choose the path of judicial adjudication, our civil justice system should make it easier for them to get in front of a judge for a determination, at proportional cost.

The Supreme Court of Canada’s decision last week in Hryniak is very promising in this respect. It calls for simplified and proportional pre-trial procedures, emphasizing the fact that unnecessary expense and delay can prevent the fair and just resolution of disputes. (See Omar Ha-Redeye’s detailed SLAW post yesterday.)

The decision allows procedure to be tailored to the goal of achieving a just result, and puts this task precisely where it should be – firmly in the hands of a judge.

Returning to my rant, I sign off with these lines from the opening paragraph of Hryniak : “Without public adjudication of civil cases, the development of the common law is stunted.”


  1. There are of course valid arguments on both sides.

    If we are trading SCC quotes from the Hryniak case, I might choose two, one from paragraph 4:

    a conventional trial … is not a realistic alternative for most litigants

    and one from paragraph 24:

    while going to trial has long been seen as a last resort, other dispute resolution mechanisms such as mediation and settlement are more likely to produce fair and just results when adjudication remains a realistic alternative.

    Adjudication may remain a ‘realistic alternative’ (though in this context, that will often mean a summary judgment if possible), but it has been true for decades that 95+% of civil cases settle before judgment. Parties are simply not required to make law, even if the ‘common law is stunted’ as a result. Our justice system exists for the parties; the common law is an incidental beneficiary of cases that go to judgment, not the purpose of the system.

    If the parties can get a better result by mediation, even structured and yes, even mandatory at an early stage, then the system serves them better than making them fight through to a trial or to the courtroom door.

    No doubt the prospect of adjudication makes them take their negotiations seriously – any practitioner of med/arb will tell you that. When that prospect is in practice a threat of exhaustion of resources, emotional as well as financial, the system is justified in designing principled shortcuts. Summary judgment is one, mediation is another. If the Court of Appeal gets out of the way of the former, then the latter may become less attractive in some cases.