By Phoebe Goldig

Picture this scenario: you, the defendant, your representation, and the presiding judge appear at your motion hearing in Small Claims Court as scheduled. No one appears for the opposing side. After waiting five minutes, the judge instructs your counsel to reach out to opposing counsel to ask whether they (and/or the plaintiff) will be appearing. The opposing side does not answer the call.

At this point in time, the matter has already been active for over 3 years, the plaintiff having continuously (and possibly purposefully) dragged their feet in advancing the action. Your counsel begins to explain to the judge that you have already incurred significant legal costs on the matter given the amount of time your counsel has spent on your case and requests that costs be awarded in your favour. Luckily, the judge sympathizes with your position and grants the motion for dismissal of the claim against you for want of a cause of action, and orders the reimbursement of disbursements paid by your counsel. However, the Rules of the Small Claims Court[1] dictate that the costs awarded on a motion should not exceed $100 unless there are “special circumstances”. The judge indicates that in this instance, she is likely bound by this Rule and may only make an order for costs in the amount of $100, despite the fact that your legal fees for the preparation of this motion far exceeded that amount.

Through this scenario, several defects in the litigation process become apparent. Below, I will discuss each of these flaws with a view to how mediation can respond to them and in turn, better address parties’ needs.

Mediation advantage 1: Mediation saves both party and court resources

Being adversarial in nature, litigated matters are often drawn out, sometimes lasting over 10 years. All the while, parties are incurring legal fees, consuming (and arguably, wasting) court resources, and contributing to the seemingly endless backlog of cases waiting to be heard in court.

When parties agree to participate in mediation, rather than having a date set by the court, parties also agree to a date and time for the mediation to take place. This prevents parties from failing to appear without notice, avoiding the scenario described above. Also, mediation is generally less expensive given that it requires less time and resources be dedicated to preparation, and it requires less time than litigation to come to a resolution.

Mediation advantage 2: Mediation allows for meaningful communication between the parties

Litigants have minimal, if any, interaction directly with each other. Often, counsel for either side communicates with each other on the parties’ behalf. This creates a disconnect between the parties and denies them the opportunity to hear each other’s perspectives.

Mediation, on the other hand, allows parties to engage meaningfully with each other and to hear what each party hopes to gain from the mediation. During the process, the parties speak directly to each other and the mediators ensure that each party understands the other’s perspective. The focus of mediation is to strengthen the relationship between the parties so that they are equipped with the tools to resolve future disputes without the need for a facilitator.

Mediation advantage 3: The solution is not imposed, and the outcome is not defined by the law

Lastly, litigation entails that a solution to the dispute will be imposed by an impartial third party either on an intermediary basis or as a final determination of the case. This solution may leave one party in a worse position than before commencing litigation, or it may provide an insufficient remedy for the harm done. It may leave both parties happy, one party happy, or both parties unhappy. Moreover, the outcome is defined by the law; which, in the scenario described above, meant that the defendant was stuck with a costs order for only $100, despite the fact that they’d spent much more than that sustaining the three-year-long litigation and preparing the motion.

If parties agree to participate in mediation, they will have the opportunity to craft their own solution and present ideas for how they might move forward. The solution is not developed by the mediators, nor will it be imposed or enforced by them. Rather, the mediator’s role is to guide the parties in communicating with each other and in reaching an agreement, and to help make the agreement “SMART”: specific, measurable, accountable, realistic, and to be performed according to a workable timeline. This means that, through compromise and negotiation, each party leaves the mediation table feeling heard, and having their interests, values, and goals met.

Conclusion

It is clear that each party in the above scenario would have benefitted from participation in mediation. Given that the claim against the defendant was dismissed for want of a cause of action, the plaintiff would likely have been more successful in obtaining their objective had they had a meaningful, respectful, and productive discussion with the defendant. Further, through mediation, the defendant would perhaps have gotten the plaintiff to agree to pay their legal fees.

As demonstrated, mediation can be an effective and efficient dispute resolution tool that addresses many of the common issues faced by litigants. Rather than forcing parties to succumb to an imposed solution or remedy, it provides the parties with an opportunity to more succinctly resolve their dispute and to work together to develop a solution that both parties agree to. Although mediation is not always successful and does not preclude parties from proceeding with litigation, it is worth trying giving the many advantages it offers.

[1] O Reg 258/98.