In October 2013, the Committee on Access to Justice in Civil and Family law reported that Canadians are not well served by our Justice System. Matters take too long to resolve. Canadians can’t afford the judicial process. Approximately 50% of the people appearing before the Courts represent themselves. A certain percentage gives up and does nothing to resolve their legal problems.
The Committee found that the solution lay, not just within the Court system, but in less expensive alternative processes that are fair, cost efficient, effective and quicker. The Committee identified mediation as one such alternative for resolving disputes.
The court process is adversarial and leads to adversarial dispute resolution. Adams, in his book Mediating Justice: Legal Dispute Negotiations (2nd ed.), notes that mediation, on the other hand, ”stresses the mutual interests underlying legal claims and rational problem-solving” (at p. 21). Mediation, in effect, causes the parties to drop the adversarial posturing and to focus on what is really at issue, which is resolving the dispute
Adams makes the following points, at p. 22:
- Mediation allows lawyers to conform to the role expectations of clients while providing the due diligence.
- Lawyers and clients work as partners in the mediation process.
- The high satisfaction with mediation is empirically evident.
- Client satisfaction, solicitor-client relationships are strengthened and often the relationships between the litigants are as well.
- Mediation improves the public’s perception of lawyers and the law.
Mediation is a flexible tool. A dispute can be mediated at any time, even before a law suit is started. Since the people involved in the mediation control the process, they control what the mediation looks like, from deciding what issues are to be mediated to and including what documents are to be disclosed. Matters that would otherwise take weeks and weeks of trial time can often be resolved in a small fraction of that time. This is the promise of mediation.