Many in the legal and justice system swear by mediation.
- The success rate is very high – 55% to 85%.
- It cuts down on the number of cases that have to be heard by judges and the courts.
- The hearings are private; not public.
- It leaves a better feeling between the litigants; often a win-win but just about never a win-lose.
Yet for all the ballyhoo, no one ought to take a step into the black hole of mediation without some basic facts.
The #1 reason everybody pushes mediation, a form of alternative dispute resolution, is because the system it is "alternative" to – the courts - doesn’t work.
It is too expensive, takes too long and is too complex.
In a sample of the justice system’s elite clubs elsewhere, in the Canadian jurisdiction of British Columbia, the judges and the attorney general share responsibilities for court administration. For a good century, they have wrestled each other over the authority to tweak the justice system, all the while not doing so and letting the complexities build up.
Eventually, the Attorney General gave up and the judges enthusiastically filled the vacuum and took over running the Courts and writing the rules; but at no time looking to simplify. With their "justice" blinders on, they went about with new procedures from time to time but no major overhaul designed to make the courts – not lawyer friendly, but user-friendly.
Consider this from the Commercial Tenancy Act:
"If any tenant holding any land at a rack-rent, or where the rent reserved is full three-fourths of the yearly value of the demised premises, who is in arrear for one year's rent, deserts the demised premises and leaves the same uncultivated or unoccupied, so as no sufficient distress can be had to countervail the arrears of rent, it is lawful for 2 or more Justices of the Peace of the county, district or place, at the request of the landlord or the landlord's bailiff or agent, to go on and view the same, and to affix, or cause to be affixed on the most conspicuous part of the premises notice in writing what day (not less than 14 days thereafter) they will return to take a second view thereof; and if on such second view the tenant, or some person on the tenant's behalf, does not appear, and pay the rent in arrear, or there is not sufficient distress on the premises, then the said justices may put the landlord into the possession of the said demised premises, and the lease thereof to such tenant, as to any demise therein contained only, shall from thenceforth become void."
(This chronology is mostly "informed conjecture", surmised from collateral facts we've observed closely over the years. We're no judge brown-noser, "in" with the old boy's club and we're not likely going to QC-ed anytime soon. Getting the facts is tough: although they purport to perform a government function of Court administration, the judges corps abhors transparency.)
When, finally, the shadows of exhausted, depressed and broke litigants at the courthouse door was too ominous for even the AG to ignore any further, they started whistling the twin tunes of ADR and mediation. The judges took notice and began to sing about access to justice (same melodies, different lyrics).
But reform was painstakingly slow and reserved for the old boy’s club.
In 2000, I wrote to the AG asking for his comment on a plan to open a non-profit law firm (click here to see the PDF of the letter). At the time, and still today, other than an individual, only a for profit corporation can practise law. Eight years later, and after several follow-up letters, there still has been no reply.
By the time the AG glanced over their shoulder, circa 1998, the judges were well-entrenched in the foxholes of "court administration", with many of the platoon leaders walking and quacking neanderthal.
A few skirmishes broke out, mostly over judges’ salaries.
Finally, the government struck out on its own and began to publicly champion mediation.
They threw money at the Justice Institute in Vancouver to crank out weekend mediators.
They used their contacts in the Law Society to spread the gospel.
Suddenly, mediation was no longer just for the long-toothed: it was sexy.
But the government seems to pay little attention as to who can mediate, recognizing scores of kids, wannabees lawyers or social workers looking for something new to do.
I was at a legal conference recently where "mediators" also were invited, mostly Justice Institute graduates, some college, a university degree here and there; some actually acting on the government payroll as family mediators.
The asinine questions they asked were telling.
But the Government, rather than fix the Court system, pursued a course of elective mediation and then, more recently, mandatory mediation.
At one mediation I was involved in, in the early days, we had three mediators. We were told that two of them were in training and they all wanted to sit in. All three were from out-of-town. I thought "who’s paying for this?" We had long speeches from their leader about mediation, and then each asked not just mediation questions but also rookie questions as well, and dragged the thing on for hours. Nothing was settled.
Often, in my family law practice, I’ll come across a fait accomplit; an agreement signed by the parties with only the guidance of a government-paid family justice counsellor. These beasts include support waivers or custody concessions which have not taken into account the whole picture, such as matrimonial property. They fit nicely around the neck of the signatories too; they are very difficult to undo.
Another case involved a serious personal injury and hundreds of thousands of dollars in damages. The other side recommended a big-city, big name professional mediator we didn’t know. We agreed thinking that given what was on the table, we’d get an ace. At mediation, the other side asked us for our opening offer. We came in at over a million dollars and gave them the details. Their counter was "zero"! The mediator, instead of chewing out the "counter", looked at us with a blank stare as if it was our turn to counter-offer. My partner and I looked back at the shell-shocked mediator and barked out: "We’re not bidding against ourselves?" She had lost the moment and mediation was ruined. Over a year later, with other lawyers representing the corporate defendant, and with another mediator, we settled the case.
Another time, I got a mediator who I thought had very poor lawyer skills. I was thinking "oh no!", especially with the corporate defendant present only by teleconference. It was a good "cut to the chase" case (small claims + wrongful dismissal) and the mediator did it, taking out her "write your number on this" notepad early, saving us from all that touchy-feely crap so many mediators feel is necessary, and which can bore the fish right off the hook.
Perhaps the greatest danger in mediation is for a litigant with a strong case, against another that is dishonest to begin with, or has snubbed doing the right thing and who needs his date with Lady Justice. Mediation is practically synonymous with compromise so if you’ve really been wronged and the other side has little prospect of success in Court, you need to be alive to the attempt to "meet you half way".
Thus, it’s a lawyer’s secret that a person with a weak case should welcome mediation, and once there, should overstate their case and use the mediator to coax the other side to compromise; anything to avoid trial.
Failed mediation means wasted fees and thus increases the cost of litigation, a useful tool for a deep pocket litigant looking to bleed the other side.
Mediation involves a bunch of dynamics not found in the Court system, for better and for worse:
- Mediation can be fruitless with hostile lawyers. In a Court setting, the judge will not tolerate it or ignore it and make an objective decision.
- Cost and stress that no one wants to repeat in the even hotter and more hostile environment of a Court;
- A mediator whose every word – ill-chosen or not – can influence the result. Too few are lawyers with trial experience. Some are downright awful;
- A mediated agreement is not as easy to enforce as a Court order and to be able to enforce it, requires good lawyer skills at the two critical moments: negotiating and then drafting.
- A participant with a good case may just swoon under the heat of litigation fatigue mediation can bring on; and
- The without prejudice nature of mediation shields the participants from the controls of perjury with a deciding/presiding officer watching their every word.
And then there is the creme de la creme of mediation: retired judges.
Freed of the confines of the courtroom, and facing a new reality of "time = money", these guys get the job done.
Mediators have to recognize and act when the moment has come to play God. That is the secret of any good mediator. Get stuck with a rookie mediator who has never spent a day in the Courtroom, spitting out niceties about "compromise","let the parties make their own deal" or "we’re only here to hold your hands", and unless you have a weak case or a group on the other side that truly wants to settle in spite of the mediator, you may as well pack it in.
Given their years of practice, retired judges are not afraid to assert settlement authority, to play God. They’ll feel the parties out and if need be, resort to the best secret of mediation: separate the parties.
Poorly trained mediators waste everybody’s time in not resorting to the oldest and most effective trick in the book: shuttle diplomacy. After a short feeling-out period, where each side listens to each other, and barring any movement – rare for this introductory period – "get the job done" mediators split the parties up quickly thus excising feeling and emotions and bringing it down to a number game which, in Court, it always is.
Mediation can work but unless it’s free - or especially if it’s free! - participants must be alive to the pitfalls and opportunities presented.
Back at the Courthouse, some20 years too late, the boys are up to something having come out with a reform package of their own. A 6-member BC Justice Review Task Force (a cool logo and comprised of two judges, two civil servants, two lawyers - but no-one from the front-line bar or from the people) at least has a website but it's moved by the same group that has been on the bridge of this Titanic.
For justice system reform, it was high noon in the OK Corral over a decade ago when Ujjal Donsanjh was AG and made his province-wide tour on justice reform.
It's all too little, too slow.
Mediation is always preferred to litigation. Any lawyer worth his ilk would think "mediation" first anyway.
What we don't need is private mediation married to judicial litigation, or in lieu of. What we do need is judicial mediation as a mandatory first step to litigation; now that would be an improvement.
If by some miracle, in BC or anywhere in the common law world, neanderthal judges suddenly become a minority among their peers, we can catch up with a 50-year reform lag and really reform the Court system (so that one does not need a lawyer to get through it). Mediation can be integrated in the judicial system, as it ought to be, or remain the "alternate" it used to be, rather than the fake panacea to a slow and inaccessible justice system it is becoming.