Tweaking Mediation

Civil justice resources should be deployed so that there is a gravity-assisted, downhill run to the courtroom where disputes will promptly be judicially determined, if mediation fails. Unless the parties decide otherwise, failed mediation and the judicial determination step should be linked.

There can be no doubt that promotion of the settlement of civil disputes through mediation, is a wise policy. But it must not effectively be the final step in the civil justice process.

If parties are at the point of emotional and financial exhaustion by the time they reach mediation, it will not be practical for them to continue on to a hearing when mediation fails.

In that situation, effectively, they must settle.

This opens the door to exploitation, unfairness and injustice – anathema to a judicial system.

What if the price of peace at mediation is too high? What if one party is both unreasonable and wealthier than the other?

Caught in that dilemma the reasonable party’s option is either to accept a settlement that does not fairly reflect the chances of success at a judicial determination, or trudge on uphill through mud and obstacles rolled in the way of getting a matter before a judge for determination. These obstacles often include: mandatory wait times before setting down for hearing; judicial mediations; pre-trials; second pre-trials; and even “mid-trial pre-trials”.

Such obstacles increase the cost to the reasonable party, and therefore increase the pressure to accept an unfair settlement. They work in favour of an unreasonable party.

Not only would linking failed mediation to prompt judicial determination focus the minds of the parties at mediation, it would tend to improve mediation by curbing unreasonable positions, and creating real, more affordable options for parties faced with unreasonable adversaries.