Which one is better: Mediation or Litigation?” Oops, wrong question!

After having gone through a lengthy lawsuit, I was firmly a believer of alternative dispute resolution methods. Litigation is costly and time consuming. The adversarial nature of litigation escalates the conflict. My experience convinced me that there must be better ways for people to resolve their disputes. When I learned about mediation, I was elated. I thought I have found the “alternative” to litigation. As in “replacement”. In fact, I started to believe that mediation is superior litigation.  I wanted to steer everyone away from the courts!

Recently, I realized that this is not the best approach to thinking about mediation and litigation. Although I still see mediation as a very effective process, I now realize that I cannot say that one method is “better” than another in an absolute sense.  First of all, disputes can be very different in nature. Disputes in divorce and separation situations are very different from say, fraud or motor vehicle accidents in civil litigation. Secondly, mediation and litigation have different purposes, as I will elaborate below.

Sometimes, a plaintiff1 has no choice but to go to court to ask for its help in stopping a fellow citizen (defendant) from continuing to cause harm, or to compensate them for the harm they caused.  Usually, this is necessary, when that defendant refuses to work on a resolution with the plaintiff. An example might be an instance where a defendant posts defamatory material on the internet. If the defendant refuses to respond to requests from the plaintiff to remove the offending material, the plaintiff would need to find a way to force the defendant to do so. One way may be to seek the help of a mutual friend, or a community or a religious leader to persuade the defendant to stop their behaviour. However,  community leaders do not have the authority to force a defendant to listen to them. Only courts have the authority to order citizens to do something against their will, and impose penalties, such as fines or jail terms for ignoring them. If the defendant thus refuses to respond to requests for negotiations or mediation with the plaintiff, or meeting with a community leader, the plaintiff has no option but to ask the court, to compel the defendant to stop their harmful behaviour.

Litigation is adversarial from start to finish. A plaintiff is forcing a defendant to engage in a legal proceeding. A judgement may be awarded against the defendant forcing them to do something against their will. Due to the coercive nature of the orders, there are rigourous rules in place to ensure that the process is fair. It is this emphasis on fairness of the process that makes our rules complex.

While litigation may be necessary when a plaintiff needs the courts to stop someone from continuing harm, when it comes to true resolution of conflict, I do not believe litigation is adequate. Going back to the defamation example, there may be many complex emotional reasons why the defendant chose to harm the plaintiff. Litigation is not concerned with these reasons. It focuses on the conduct or the action of the defendant. Litigation is concerned with the facts, and what order should be given: did the defendant truly do the wrong that the plaintiff alleged? If so, what should the judgement be: an injunction to stop them posting? A monetary penalty? Courts have a limit as to what they can adjudicate, and what types of orders they can give.

Litigation is not meant to be the ultimate conflict resolution process. It is not designed for a judge to listen patiently to all the emotions and feelings the parties may have associated to the conflict. The judge is only required by law to consider the relevant facts and law in order to arrive at an order.  At the same time, litigants go to court not to simply ask a judge to “make a decision”. You are asking a judge to force someone to do something. Since it is not a judge’s role to help litigants examine the deep underlying issues that give rise to the conflict, it may be the case that one or both parties continue to feel that they are not at peace with each other, even after a judge’s order has been issued. 

I do not personally like the coercive nature of this process. However, I also think that courts are necessary. How else would a plaintiff receive help in stopping the defendant from doing harm? On the other hand, to end conflict between individuals, it may require the parties to seek the help not only from the court, but also therapists, counsellors or mediators. Litigation is a very severe means to deal with conflict. It is necessary in certain cases, as when a defendant continues to cause harm to a plaintiff, despite being told to stop. On the other hand, when parties can sit down and actively engage in a honest dialogue about their relationship, that may be more effective in reaching a true resolution in the long term. Until parties can reach a true understanding of each other, anger and mistrust will remain. Only when there is no longer an emotional need for justice will peace and resolution be achieved. Of course, it may well be that in some cases, parties have no desire to truly understand each other. It is also possible is that parties come from such different backgrounds and life experiences that no true understanding may be possible.

In the end, I now see litigation and mediation as processes that have different purposes to them. In fact, in civil litigation, some jurisdictions require mediation as part of the litigation process. Ontario’s civil procedure rules are designed to actively encourage parties to settle on their own. Judges presiding over settlement or pre-trial conferences actively help parties settle the dispute before trial. Litigation and mediation are thus not mutually exclusive. As such, it is inappropriate to say one is better than another. 

Footnote: I use the term “plaintiff” as someone who starts a lawsuit. However, depending on the area of law and subject matter, this could also be an “applicant” or “claimant”. Similar corresponding terms apply to the other side, which could be a “defendant”, “respondent”.

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