Why Mediation?

If you read any articles about mediation, you are likely to learn why mediation is a better way to settle disputes than having a court trial. Mediation is faster, less expensive, less stressful, and more private than a trial. It is often more rewarding too.

After 40 years of practice and having conducted more than 2000 judicial mediations, I have two personal insights that seldom make the aforementioned benefits’ lists:

Mediation is today’s natural forum for advocacy. By advocacy, I do not mean the strident oratory and harsh cross-examinations that non-lawyers often associate with courtroom prowess. I am talking about the art of persuasion, the ability to build a logical argument for your side, and to find long-term solutions which are not combative and unilateral. In our clogged court system, lawyers spend most of their time at trial or at expensive motions fighting for an outcome which is quite uncertain.

During a mediation, the lawyer's time (and fees) is spent advocating for the client’s best interests in skillful negotiation and creative problem solving in order to find principled and reasonable approaches to ending the litigation on positive bases, and thereby providing the client with the comfort of a certain and earlier outcome.

Mediation gives participants control over the outcome. I love our legal system. It is one of the greatest benefits of living in our great democracy in Canada. But taking a civil dispute, such as a personal injury matter to a jury trial is like consigning your fate to half a dozen people pulled at random from a fast-food line-up. The parties have no control over the outcome.

To use another example: an estates dispute may drag on for years at incalculable torment and legal costs to the parties because it did not settle at mediation. The trial outcome may satisfy none of the beneficiaries.

Or a commercial dispute which goes to trial and forever destroys the parties’ business relationship and causes reputational harm to all. A mediated settlement is a far better outcome. Having been a litigator, advocacy teacher, legal author, and a Superior Court judge for 40-plus years, I have witnessed many court adjudications and judgements that please neither side.

In mediation, neither side wins everything—but at least each party has the option to attain a reasonable outcome. The key is that any solution is party-driven and is not a judge nor jury imposed resolution. It is entirely in the parties’ hands and not in the hands of third party judges and juries. The parties totally control the process. If any of my family members had a serious dispute, I would strongly urge mediation over trial for this reason alone.