Sunday, March 25, 2012

Judicial Mediation "is a waste of time and money"

"Snapper" (digital manipulation) 2010

"Judicial mediation is a waste of time and money" I could not agree more. 

It is the generally held belief that mediation works really well. So well in fact that it must be used regardless of the apparent ineffectiveness in the face of the facts at hand. It seems only relevant to the lawyers and mediators that mediation happen. Most disputing parties want to get the matter settled properly and at trial where the rulings made are enforceable. Especially the party that can demonstrate truth and provide proof of it. In Mediation, the matters have to be heard in secret, kept secret, the outcomes or discussions are not binding and no one has to follow any recommendation. There are no orders, no findings, though the matter is heard and judged in a manner of speaking by a very important QC (Queen's Counsel) person (someone just shy of becoming or wanting to become I judge?).

It is a "mini trial" which need not happen at all. It is an impediment just getting in the way of the real trial.

Mediation assumes two parties can come to some sort of agreement, that the matter between them, by default, has fault on both sides which may be amended, smoothed over, negotiated...

"Why use mediation?
Because it works. Parties entering mediation in good faith are successful 80 percent of the time in finding an agreement they can live with." (source:

Depends though on how much one must rely upon the fantasy of denial to agree with or accept such a claim. There are no grey areas to this claim. The claim is "successful" not "settled". Within the claim is the notion of "finding an agreement they can live with." Is that good enough for you, me, the law?

I can believe a figure which claims 80% of mediation are settled - but how does one establish success and can the recipients of this all purpose salve then magically "live with" the mediated outcome? I'd be surprised if convenience, fear, expense, stress - financial and emotional, health/life issues caused by the legal matter were not the actual catalyst for resolution. Perhaps, for the lawyers, avoiding trial and settling the issue whatever the ethical or justified loss is as good as success, a win? Really? Values, ethics, doing what is right, righting the wrongs of another are, it seems, out of fashion in the legal fraternity. My naiveté? Perhaps.

What really happens (and lets face it the reasonable person knows this already) is one party is bribed, or worn down by the expense and stress, into allowing another to get away with their poor behaviour/s and bad action/s so they may get on with their lives or deal with some of the consequences of standing up to legally endorsed bullying. Then they get to do it all over again to another with impunity because yet again they've been given an out by a dysfunctional process which is about following process, not that the process is beneficialwarranted or recommended.

Judicial mediation is a lawyer's fantasy (works out well for them really).

There needs to be two reasonable parties to make any mediation work within the spirit of its intent. Otherwise it is simply a pointless and costly exercise and a waste of everyone's time.

No comments:

About Leeanneart

My photo
Melbourne, Victoria, Australia
We are first and foremost human with a responsibility to the humanity within us and not to any faith, political, apolitical, social or societal group, union or faction. We are responsible for our own reputation, and for what deeds we do and what achievements or otherwise in life we enjoy. The rest is nonsense.