Saturday, August 15, 2015


I spend a great deal of my time writing about decided-estate-litigation-court cases. Yet, in my experience the vast majority of disputes are settled through negotiation, and increasingly through mediation. I attend far more mediations than trials. I believe many other lawyers who practice in this area of law have similar experiences.
But because mediations are confidential, I cannot write about the facts, negotiations, or the outcomes. They are not reported like trials. I only know about the ones I attend, and it would be a breach of my obligations of confidentiality for me to write about those.

Furthermore, mediation is not frequently discussed in reported court decisions.
There is, however,  a recent court decision in which Mr. Justice Kent describes the merits of the mediation process. The case is Matsqui First Nation v. Canada (Attorney General), 2015 BCSC 1409. The dispute concerns whether the Matsqui have a constitutional right to fish for salmon for domestic purpose in an area of the Fraser River and, if so, whether the Federal Government is infringing on those rights.

The Matsqui First Nation delivered a Notice to Mediate pursuant to the Notice to Mediate (General) Regulation. The Federal Government did not consider the dispute amenable to mediation, and applied to court for an order exempting it from mediation. To succeed, the Government would need to establish that mediation would be “materially impracticable or unfair.”
In reaching his decision that the Federal Government ought not be exempted, Mr. Justice Kent summarized many of the merits of mediation in which he quotes a decision from the Alberta Court of Queen’s Bench, IBM CanadaLimited v. Kossovan, 2011 ABQB 621 (CanLii):

[16]         The Kossovan case, supra, also made various observations about the alternative dispute resolution process which may be apposite here:

[39]      It is a fallacy to think that the outcome of a [mediation] will always result in a substantial compromise to one’s initial position. While one of [the] objects of [alternate] dispute resolution is to get both parties to “move” from their initial positions to one which they can mutually accept, the ultimate objective is achievement of a judicious outcome that all parties can live with, put behind them and move on.
[41]      A number of plaintiffs enter into the litigation process, believing [in the justness of their cause and] that they are entitled to recover the full amount of their claim. Positions may be based on what they have been told by counsel, personal principles, or … corporate direction. Yet despite this belief successful settlements are often reached. Parties may be persuaded to resolve the dispute once the weaknesses in their own case is revealed to them, given the uncertainties of litigation. Having a [suitably qualified and experienced mediator] outline the strengths and weaknesses of each party’s case may cause one or both of the parties to modify their settlement positions. Alternatively, if a strong case is put forward where ability to recover is in issue, creative repayment solution might be successfully canvassed.

[42]      A belief that there is little room for flexibility and no major concessions … will be made does not act to render the [mediation] process futile. ...
[43]      Even if the parties are unable to reach a settlement, this does not mean that attendance at the [mediation] has been “futile”. Multiple other benefits may be obtained. ... The parties may be able to narrow down or agree [on issues] during the [mediation] process. At the very least, getting together to refine the legal issues and plan the next court steps can also result in time and cost savings. A good faith commitment to a process that may ultimately resolve the dispute, or shorten trial time and reduce heavy trial costs is never a futile endeavor.
[17]         I agree that settlement of the claims in this case may confront formidable obstacles. However, after participating in dozens of mediations in more than 30 years of practice at the bar before joining the bench, I agree with and endorse the observations made in the Kossovan case.
[18]         The beauty of mediation lies in its confidentiality and flexibility. With the assistance of a skilled mediator, the parties are free to speak to each other directly and to frankly express their concerns and interests without fear of prejudicing the litigation should the matter not settle. That is to be encouraged. Empathy and apology can and often does play a powerful role. Seemingly intractable positions become less so. The legal issues framed in the pleadings frequently do not reflect the real interests or concerns motivating the litigants. Creative remedies not available to the court can be forged to bridge differences. Important relationships can be repaired.
In reference to the dispute before him, Mr. Justice Kent reasoned:

[19]         In this case, the Matsqui seek declaratory relief respecting a perceived aboriginal right protected and preserved by the Constitution. This is not the sort of remedy that is readily available in a mediation process. They undoubtedly know this, yet they have initiated the mediation nonetheless. Presumably they believe there is some basis for settling the claim available. It may have little to do with the formal legal relief sought in the litigation. One cannot help but ask what do the parties have to lose by confidentially exchanging and explaining perspectives and interests? If nothing else, perhaps some accommodations and efficiencies may be reached regarding evidence or other trial process that may reduce mutual inconvenience and cost. At best, some sort of creative resolution in principle may emerge, albeit subject to later ratification by superiors if necessary. At worst, the case will simply proceed to trial in a couple months’ time with an interim “loss” of one or two days’ effort.

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