Mediation: A Human-Centred Alternative to Litigation

Mediation: A Human-Centred Alternative to Litigation

By Josiah Schaafsma

Prior to attending law school, my interactions with the justice system were quite minimal. Having never been to court before, I somewhat naively believed that courts and tribunals were set up in a manner that empowered individuals to resolve their conflicts by giving each party a voice and then having the issue decided by an impartial party. My first trip to bail court during an introductory criminal law school class quickly caused me to reconsider my assumptions.

The entire process felt so alienating; the structure of the room reflected the separation between the parties and judge. As the defendant shared intimate details about his substance abuse issues and losing his father as a young child, the judge looked on with an expression that suggested both boredom and dismissal. After leaving court that day, I thought about how dehumanizing the proceedings had been - how embarrassed and exposed I would feel after being compelled to speak about my trauma to a room full of strangers.

Throughout my first year of law school, I continued having my assumptions challenged. In my legal process class, I learned how expensive and time-consuming civil litigation is. I also learned that after expending all that time and money, many litigants emerge feeling they have not been fully heard. My experience volunteering at a legal clinic confirmed how dehumanizing the legal system can often be, particularly for society’s most marginalized. Numerous clients shared how they were not taken seriously, their concerns were minimized, and their voices muted by procedures they did not understand. One woman shared her frustration after having her application dismissed for being two minutes late to her Landlord and Tenant Board Hearing. When she went back after filing another application, the same member who dismissed her file was thirty minutes late and began the proceedings with no excuse.

Traditional litigation has rightly earned its reputation as a caustic, exorbitantly expensive, and bloated ordeal. Alternative dispute resolution practices, such as mediation, offer a human-centred alternative to litigation. Mediation both respects and affirms the dignity of each participant by giving space for all parties to be heard. Regardless of which model a mediator follows, a central aspect of the mediation will involve allowing each party the space to share about how the problem has affected them, their feelings towards the other party, and their hopes for moving forward. During this sharing, mediators work to emphasize positive intentions and commonalities with the other party. By creating a safe environment for parties to share, mediators also present parties with the opportunity to strengthen their listening skills and deepen their empathy for others - skills that might help the parties to avoid conflict in the future. Lastly, the mediation process also highlights the agency of each party. Neither party can be compelled to continue the mediation and mediators do not assign a verdict. Rather, the parties can choose to work together to devise a solution that best addresses the harm that brought them in. Mediation is clearly a process that deeply regards the humanity of its participants, in addition to typically being more efficient and inexpensive than litigation, often making it a preferable alternative to more traditional modes of resolving conflict.