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Mandatory mediation - The issue

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  1. Introduction
  2. The process and the opposition
    1. Implementing the the mandatory mediation program
    2. Garry Smith's commentary
  3. The proponents
    1. The four main benefits that serve as incentives
    2. Incentives to maintain relationships
    3. Argument in favor of mandatory mediation
    4. Advantages to mediation over the traditional adversarial model
  4. A potential pitfall
  5. Concluding analysis
  6. Bibliography

When matters of litigation are directed by the court to be done outside of the traditional court environment the parties involved are typically already in a conflict-intense claiming process. In such an atmosphere it is not surprising that each party places great weight on the outcome of the process and this cannot be disregarded. Indeed, the way in which conflict-resolution is handled has important ramifications for the continuous relationships of those involved. It is in this light that the process of mandatory mediation requires further analysis. Certainly, when a judicial body seeks to mandate a once voluntary reconciliatory tool the consequences should be closely examined. As such, this essay will serve to investigate the positive and negative attributes of the mandatory mediation initiative. In this way, it will become clear that in cases where the court orders the mediation process to take place, the will to sustain a continued relationship between the parties in dispute is not typically an option. As such the mandatory mediation process is better suited in those cases where the parties involved place less emphasis on maintaining relationships.

[...] This study compared the costs of court litigation and mandatory mediation based on average salaries of litigation attorney's. Based on a billing rate of $200 an hour which can be said to be unfairly low based on today's standards, a three day trial in the General Division would cost somewhere in the area of $40,000. This differs markedly from the cost that would be incurred through mediation. There are rules set forth under the guidelines of mandatory mediation that dictate that the fees involved in the process cannot exceed $800, and that this fee be shared by the parties involved. [...]


[...] Lawyer No 37- Gambrill, D., ?Mandatory Mediation Pilots A Success? (April. 2001) 12 L. times No Macfarlane, J., Dispute Resolution: Readings and Case Studies (Toronto: Edmond Montgomery Publications Ltd., 1999) Melnitzer, J., ?Need For Mandatory Mediation Drops with Caseload? (Mar. 1999) 10 Tiems No Pepper, R.A ?Mandatory Mediation: Ontario's Unfortunate Experiment in Court-Annexed (August, 1998) 20 Advocates' Q. 403- Smith G., ?Unwilling Actors: Why Voluntary Mediation Works, Why Mandatory Mediation Might (1998) 36 Osgood hall L.J. 847- Evaluation of the Ontario Mandatory Mediation Program (Toronto: Queen's Printer, March 2001). [...]


[...] In another instance, there are also those who argued that moving toward a system of justice that places more power in the hands of private settlement would signal a fundamental shift away from the rights-based system that has characterized Ontario's judicial system.[4] According to Garry Smith in his commentary on the issue in the Osgood Hall Law Journal, the effects of the mandatory mediation on our justice system would be most profound in situations where the parties involved were not willing to negotiate. [...]

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