Originally appeared in the International Bar Association's Mediation newsletter, vol. 5, no. 1, April 2009.
At least one justice of the English Court of Queen's Bench seems determined to prove incorrect the old adage 'you can lead a horse to water but you can't make it drink.'
The decision in James Carleton Seventh Earl of Malmesbury and others v. Strutt and Parker, [2008] EWHC 424 (QB), was outlined by Joe Tirado and Rebecca Wright in the September 2008 IBA Mediation Newsletter (vol. 4, no. 1, "Costs and mediation in the English courts," page 29). The Court held that a party's position in mediation was 'plainly unrealistic and unreasonable'. Apparently the Court equated taking an unreasonable position in mediation that causes the mediation to fail with unreasonably refusing to mediate in the first place. The Court held that taking an unreasonable position, like unreasonably refusing to mediate, will attract cost consequences.
I believe in mediation. I believe that almost every case can and should be mediated at some stage. I am not opposed to mandatory mediation – that is, requiring parties that are engaged in court litigation to mediate. I do not consider mandatory mediation in a publicly funded court system an unreasonable imposition on the parties' entitlement to a fair and impartial adjudicated outcome.
Even beyond court litigation, I believe that parties should be encouraged in various ways to engage in mediation before and during arbitration, and that more can and should be done in this regard by all participants in the arbitral process.
But the role of the courts (and arbitral tribunals) should end when the horses are at the trough – when the parties enter the mediation room with their mediator. After that, what happens in the mediation room should stay in the mediation room.
Yes, some parties may take what others will consider – viewed from a different perspective and a different time – to be an 'unreasonable' position. Perhaps in one party's view, taking a hard-line, so-called extreme position is a sound approach to the negotiation. Perhaps it is. History has good examples of the wisdom of refusing to make concessions and of the folly of making bad concessions. The courts should not be second-guessing what the parties do in their mediation. There is more to be lost than to be gained.
The mediator's task is to attempt to get the parties to reach an agreement.
Mediators are trained in techniques to try to get a party that is taking a hard-line, extreme or unreasonable position to modify the position. Sometimes the techniques work; sometimes they do not. Ultimately, if an agreement cannot be reached – for whatever reason – the matter should end there. The parties and the mediator should leave the mediation room and close the door. A judge or arbitral tribunal determining costs at the end of the case should not reopen the door.
Assessing whether an unreasonable position was taken is, at best, a difficult task. But even if it can be done, should it be done? Does the minimal benefit for the justice system justify the cost – not just the cost of going through the exercise but the cost in terms of damage to the mediation process and the reputation of mediation?
Harm will be done to the mediation process and to the reputation of mediation if mediations are, in effect, conducted under the watchful eye of the equivalent of a judicial surveillance camera. From a policy perspective, it is better that the occasional mediation should fail because one party takes a so-called unreasonable position than that judges, when dealing with costs, begin to conduct autopsies on 'failed' mediations (presuming a failed mediation is one in which agreement is not achieved).
For the benefit of mediation, let's keep judges (and arbitrators) out of the mediation room.
Barry Leon a partner in the Toronto office of Torys LLP practises international and domestic litigation, arbitration and mediation.
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