By Melissa Paglialunga

Imagine this scenario: You and your partner decided to buy a new home several years ago, excited to take this momentous step in your personal lives and eager to move into a safe environment to raise your children.  However, a few years later, you are devastated to discover mould growing in the corners of this brand-new build.  Unsure about its source and the true magnitude of the situation, you hoped that the dark circles would go away.  You dismiss it as nothing serious, only to discover years later that these dots are starting to spread, and the problem has reached a point where it can no longer be ignored.  The home you thought was your perfect space has now resulted in additional costs, including expenses relating to taking time off work and hiring mould inspectors along with many other consultants.

Now, envision another perspective.  You are a construction manager at a company for which you are proud to work – one that has repeatedly delivered high-quality homes to its clients.  Many years ago, you were able to work on a new home build for a lovely couple and after all the papers were signed, you shared details with them about the Tarion home warranty and certain obligations they had as homeowners.  A few years later, you were shocked to receive an email from the homeowners outlining the existence of mould.  Although sympathetic, the warranty had expired and currently, there is nothing you can do.

In reading these two scenarios, you may be more partial either to the young couple or to the construction manager.  However, now visualize one additional detail.  In proceeding through litigation, the plaintiffs, being the young couple, are attending as self-represented litigants whereas the construction manager and his company have a knowledgeable lawyer as their advocate.  In thinking about how this set of facts could play out in court, a certain reality struck me.  Hearings aim to evaluate the merit of the claim by hearing from both sides, calling expert witnesses, and explaining the relevant case law to reinforce the views of each party.  The goal seems to be uncovering the truth.  Yet, being able to discern the truth seems much more difficult due to the fact that the parties are not, at least in my opinion, properly matched.  Another consideration is that this disparity could be further amplified by the actions of the judge.

In an effort to enhance procedural fairness, the judge may choose to take the time at the beginning of the hearing to clearly outline the various steps that were to take place.  The judge could proceed slowly, checking in first with the plaintiffs and then with the defendant’s counsel to ensure that all pressing questions were answered.  The judge could clearly state that their role is that of the decision-maker, not as a representative for the litigants.  All these steps by the judge could work to try and ‘level the playing field’ in a sense, working to ensure that the plaintiffs do not feel discouraged by being unrepresented.  By reflecting on this scenario, I keep asking myself the same question: Is there not another process that could avoid all these procedural hurdles, providing a more meaningful avenue for self-represented litigants to be heard rather than worry about the court’s processes?

To me, mediation is that avenue.  Mediation provides a vehicle for two or more parties to be able to sit at the (virtual) table together, sharing their perspectives, hearing the viewpoints of the other parties, and being able to devise unique solutions.  The process of mediation completes all these goals without the complicated court process that parties need to navigate when engaged in litigation.  Instead of focusing on learning how to submit photo evidence and under what timelines, self-represented litigants can instead feel comforted in knowing that all the time spent in mediation will be used to try and reach a mutual understanding as well as to brainstorm potential solutions.  Mediation allows for these parties to avoid the uncertainty that may accompany navigating litigation without the support of a trained legal professional.  Unrepresented litigants, disputants being prepared and ready to present their case, will always have to contend with understanding the process, next steps, and expectations to a lesser degree than the opposing side, who may be equipped with the knowledge of a trained lawyer.

In returning to these two perspectives presented at the beginning of this blog, it is easy to be sympathetic to both parties – the new homeowners and the proud construction manager.  However, it is almost certain that the disparity between the two parties will lead to unnecessary added steps in litigation, leading to unanticipated delays.  This time could be spent hearing various views and working towards a mutually agreed-upon resolution in a mediation process.  To me, mediation appears to be a more timely and economical response when both parties are unable to acquire representation due to several expenses, such as financial costs.  Do you agree?