Mandatory Mediation?

I was just reading about the new Italian law mandating mediation in the litigation process and it occurred to me that not everyone would agree with this. Should mediation be mandatory in litigated disputes? Some would argue a resounding yes, while others would suggest the courts have no business imposing alternative means of resolving disputes.

I believe, without reservation, that mediation is a healthy, productive and efficient alternative to litigation, but should it be imposed on parties as another compulsory step in the litigation process? Does such an imposition rob the mediation process of its particular efficacy, or does it simply ensure that people will become accustomed to resolving disputes in alternative ways?

I don’t have the answers to these questions, but I can see merits to both arguments.

Mediation is less a process than a vehicle. Unlike litigation, there are no strict rules and no pre-determined steps to follow. Yes, there is a suggested framework that happens to work most of the time, but it is not set in stone and the whole idea is that parties not hampered by process are free to develop strategies and solutions unique to their issues. If you force parties into this process, what does that do to the process itself? To be truly successful in mediation, parties must come to the table actively choosing to be there. They must buy into the process, and, even though they may not be able to see how on earth sitting across a table from their adversary will help resolve the animosity between them, they must be willing to believe that it will. If you force someone to be somewhere they’d rather not be, even for their own good, will their presence alone ensure ultimate success? What’s the old adage about leading a horse to water…?

Okay, so then we don’t force parties, but allow them to choose this wonderful vehicle for themselves , happy in the mutual knowledge that all will be resolved with less time, money and grief than in the litigation process. Ah, that blissful world where everyone actually knows all about mediation, where and how to choose a mediator, what actually happens in a mediation and believes wholeheartedly that mediation is the place to be. Unfortunately not our reality – yet. Would people choose mediation as an option without being ‘forced’? By compelling parties to at least give it a try before proceeding to trial, aren’t we enabling those parties to benefit from a process they may otherwise not have known about? If successful, aren’t those parties likely to view mediation positively and either use it again, or recommend it to others? And the lawyers involved – if they see first hand how successful and efficient mediation can be, won’t they be more likely to promote its use on another file? What better way to educate and re-align the collective perspective of the litigating public than to ensure that public participates in the process and has a look for itself.

As I said, I don’t have the answers, and no doubt the debate will rage on. What I do know, is that helping people break down their conflict into workable parts, and then discussing effective solutions makes sense. While it may not work for all, it works for many. The more we come to understand and believe in this alternative, the better we will be. And ironically, cleansed of all those disputes that should be ‘worked out’ between the parties themselves, our court system will perform more efficiently for those disputes that should not.

Posted on May 18th, 2011 by Renee