Mon 21 Jul 2014

How can the justice system more effectively use mediation to enable SRLs to obtain fair resolution of their conflicts?

Posted by Heverton.Oliveira

I have been very inspired by the ongoing posts to the National Self-Represented Litigants Project blog.  

My post last week was an introduction to a very important topic featuring frequently in that blog.  This post takes the topic to a slightly deeper level.

One could write an entire book (or two) on this topic. It is absolutely central to the civil and family justice reform work that is ongoing in Canada. For the purposes of this short article, I will try to identify what I believe to be some of the most critical pieces.

First, I assume that “justice system” in this context means the broader system to resolve disputes and not just the courts. Mediation can be used at all stages, from the time a dispute arises, prior to the commencement of a formal court action, during a court action and right up to the conclusion of a trial or an appeal.

Second, it is important to note that mediation is not a panacea and it is not perfect fit for every conflict. However, the benefits are so compelling it should at least be considered seriously as an option.

The Final Report of the National Self-Represented Litigants Project states:

A significant number of SRL’s say that they were never offered mediation, and/or do not know what it is. This is a clear gap that needs to be urgently addressed (for example in educational workshops and better publicity). Some SRL’s were nervous about participating in mediation, and especially where there was a lawyer representing the other side. Some SRL’s who were eager to resolve their case expressed frustration that the Bench did not exercise greater pressure on a recalcitrant opposing side to come to mediation.

1. Education of the Public

Mediation is still an unknown concept to most individuals. Recently, Mediate BC was invited to participate in a “wellness conference” at a local college. We were excited to be included as we think mediation is indeed a healthy option for citizens with legal problems. It was not until we set up our booth and surveyed the other participants that we realized the organizers probably thought we were a “meditation” rather than a “mediation” organization! This is, unfortunately, a common mistake. We used it as a wonderful opportunity to raise awareness of mediation as a useful and healthy tool! When we explained the process and compared it to the court process people’s eyes lit up. They got it immediately and appreciated its potential benefits.

Similarly, at a recent expo of small businesses, many participants told us that they had been through extensive court battles and did not want to repeat that experience.

There is still a cultural bias in favour of the court system for conflicts of a legal nature. Many people still think that their only option is to start a court action if they can’t resolve something directly. Some insist on having their “day in court” when they really don’t understand what that means.

Obviously, more education is required. But when and for what audiences? Our approach is to target early education/awareness efforts at the group we call “trusted intermediaries” – the people who are sought out by those facing legal disputes and court actions. Trusted intermediaries include lawyers but are a much wider group than that. They include financial advisors, therapists/counsellors, faith leaders, legal advocates, community service groups etc. They are often the ones whose job it is to guide people in conflict day in and day out. If they have an understanding of the mediation process and its benefits, they can provide strategic assistance at these critical times.

2. Education of System Representatives

Those responsible for the formal justice system (lawyers, paralegals, judges, court registry staff etc.) must have a detailed understanding of mediation and how the public can access mediation resources and programs in their jurisdiction. I agree with Nic that, for lawyers, education must go beyond just law school or new lawyers will find that the adversarial legal culture will swallow up their collaborative approaches. As Peter Drucker said: “Culture eats strategy for breakfast”.

BC’s new Family Law Act requires “family dispute resolution professionals” (lawyers, family mediators, family arbitrators and parenting coordinators) to discuss the advisability of using various types of resolution (including mediation) and inform the party of the facilities and other resources that may be available to assist in resolving the dispute. I believe the intent was that if mediation was a viable option for a family the family lawyer should provide information to his or her client about the process and recommend that it be used. Time will tell whether these provisions are applied in a meaningful way.

There are opportunities for lawyers to take new kinds of roles that are more affordable for people and yet still support the mediation process.

The current formal justice system is highly resistant to change. These are big changes and they will not come easily.

The Final Report references counsel’s perceived “antipathy towards mediation”. This included a perception that counsel did not suggest mediation as a viable alternative and did not include strategic coaching of the client about mediation and how to use it. One has to ask whether this is a result of counsel’s lack of familiarity with mediation or a symptom of a more deeply held systemic resistance (a “culture of opposition” in the words of the Final Report).

3. Build It Into the System So It is Easily Accessible

Mediation should not be an after-thought. It should be included in all PLEI information, triage processes and referrals. We need to give people real options at an early stage and at each strategic decision point along the way.

4. Ensure Mediation Processes are Affordable and Resources are Allocated Fairly

Ideally, mediation services should be available in every community and priced in a way that meets the financial realities of the parties to the dispute. Mediation is actually much more affordable than many people believe and, given that it can resolve a dispute much more quickly than the court system it can save parties significant sums.

We would like to see mediation services available on a sliding scale basis that allocates resources fairly depending on the actual financial situation of the parties. This is the family mediation model now in place in many court locations in Ontario (subsidized by government) and it is working well. We believe it could work for pre-court disputes as well.

5. Consider Mandatory Processes

“Mandatory mediation” rules are really “mandatory attendance” rules. All you can do is get people into the room (or involved in the process through distance technology), you can’t force them to talk to each other and certainly not to reach agreement. Mediation is a voluntary process in that sense. However, we know that once people come together for mediation the process works most of the time. Of course, special attention needs to be paid to ensuring safety, particularly for families who may be experiencing domestic violence. Research demonstrated many years ago that outcomes from a civil mandatory process were similar to those from a non-mandatory process. The truth is that even people who are initially resistant to the process like it when they get into it. And it works.

6. Use Popular Culture

So far, I have yet to see a TV show or movie that fairly displays a realistic mediation process. We know how media, and social media in particular, can shift culture quickly. So, as my last point, I suggest (perhaps whimsically) that we need a creative and compelling TV or internet show that features competent and qualified mediators in action. This could correct misunderstandings about the process and normalize it as part of our culture more quickly than any advertising or promotional campaign.

I realize that these comments just touch the surface of the issue. However, I hope it helps to spur a deeper dialogue towards real change.

Kari D. Boyle, Executive Director, Mediate BC Society