One of the first principles impressed upon us in mediation training was that mediation is a voluntary process. The parties in a dispute come to mediation voluntarily and may leave it when they desire. But in several jurisdictions, including Ontario, mediation is now mandatory for certain types of civil disputes. What are the consequences when a process that is thought to work best if voluntary is made compulsory?
First, it should be noted that the regulations in Ontario commit disputants only to a good-faith attempt at a mediated solution. There is no requirement that a settlement be reached. Ideally, in mediation, there should be no pressure on disputants to accept a settlement that they do not feel is in their best interests. (That is why the ADR Institute of Canada Code of Conduct specifies that mediators must not base their fees on whether a settlement is reached, or the amount of any settlement. The mediator should not have a financial interest in getting either party to accept a settlement.) If mandatory mediation fails to resolve a dispute, then the parties involved meet again in court. The fact that mediation was attempted and failed is not supposed to be held against them.
Mandatory mediation has definite drawbacks. Mediation’s distinctive character may be compromised as it becomes more and more a part of the “official” system. People compelled to mediate may not be as motivated to make a real attempt to solve their dispute. They might feel less of a sense of ownership in the process and in any resolutions that come out of it. And as most mediators will tell you, mediation isn’t appropriate for every dispute or for every individual. If someone wants to maintain a reputation for never settling disputes out of court, or to establish a legal precedent, the only way to do so is through litigation.
My own view is that the disadvantages of mandatory mediation are liable to be over-stated. The fact that a process has been mandated by the courts does not mean that it is doomed to fail. Indeed, mandatory mediation of civil cases in Ontario has a decent success rate, with over half of the disputes settled or at least partially settled. The relationship between voluntary action and commitment is probably more complicated than we realize. After all, people voluntarily enter into marriages that they later voluntarily leave; they voluntarily quit jobs that they have voluntarily taken on. A good mediator will try to overcome disputants’ resistance to the process, and help them see that giving the mediation process a try is probably in their best interest.
There are good reasons to favour mandatory mediation, at least for some kinds of conflicts. If a dispute can be settled out of court, the costs are likely to be significantly less, both for the parties involved and for society as a whole. It is easy to forget that the administration of the legal system is a cost borne by all taxpayers, not just those involved in disputes. Mandatory mediation might increase awareness of mediation, so that people come to think of mediation as a way to solve disputes even before they consider going to court. Finally, parties in mediation are working together to solve their disputes; parties in litigation are adversaries. A little more cooperation and a little less antagonism might be better for everyone.