Mediation can be an extremely beneficial tool in legal disputes. In few
cases is this more evident than in boundary disputes. In assessing the
recent case of
Bradley v Heslin, the ruling judge provide meaningful insight on the necessity of mediation
in this types of matters. The case judge blatantly admitted that mediation
is often much better in these cases where even the “winner”
is ultimately loosing due to the excessive costs involved. Taking issues
of boundary disputes, just as with family law matters, immediately to
court instead of attempting mediation can be detrimental. Not only can
it result in wasted legal resources, but can also cost parties significantly more.
In neighbor disputes, mediation can be much more impactful than many parties
realize, especially when both have dug in their heels and intend to stay
where they are at. The judge in the
Bradley v Heslin case reminded parties that just because legal action had been initiated, it
didn’t cut out the option of bringing in a trained mediator. No
doubt, just like in many cases, mediation would have led to a much more
satisfactory outcome for all parties involved than the restricted judgment
of the court.
Can the court enforce mediation on parties?
Trivial cases can cost the court money and resources, making the idea of
mandatory mediation in these situations even more appealing. But as of
now, the court does not typically require unwilling parties to mediate
in these types of cases. This is what makes directing individuals to mediation
without the power of requiring or enforcing such mediation a challenging
strategy to employ.
However, could simply imposing such a mediation window upon reluctant parties
be nearly the same as ordering them to mediate? The idea of ordering mediation
becomes strengthened when considering the notion that they cannot be forced
to settle, only mediate. This would then only be another step to assist
individuals with avoiding unnecessary costs and time-consuming processes
The second challenge is that though the court could move to require mediation
or enforce it more strictly, mediation itself would not guarantee an agreement.
Still, without this power, it makes it continually challenging for judges
to impose what can be seen as common sense solutions for litigating parties.
While judges are restricted to applying the law, even when they know it
fails the parties involved, mediators have the power to provide practical
solutions that can help individuals save on legal fees.
Again, while there is no guarantee that mediation will result in a settlement
or agreement, it does provide the avenue for more reasonable solutions
and less costly legal services. Though parties may still be unwilling
to compromise, judges still can justify requiring mediation with the expectation
that it could save individuals extensive time and money while sparing
the court dwindling legal resources.
The Price Tag of Mediation vs. Litigation
There is no doubt that litigating is more expensive. That is why it should
be assumed that your lawyer would avoid litigation if at all possible,
right? Unfortunately, this is not always true. In many cases, attorneys
have been found to have opted to pursue frivolous litigation over mediation
in favor of the higher price tag. When they represent a client during
courtroom proceedings, their pay check is often much bigger than in the
case of mediation. Some lawyers don’t even offer mediation services,
further stoking the flame of misleading expenses. Clients should be aware
of the services their advocate offers. If they want to pursue mediation,
will their lawyer guide them through this process, or refuse to back down
from litigation? Are they leading their client to litigation for their
own benefit or because it is the best option? It is crucial that individuals
stay aware of these matters.
Overall, it seems that mediation––whether in boundary disputes
or child custody matters––is becoming more popular and effective
than litigation for many cases. This may ultimately change the way that
minor cases and disputes are handled by the courts in the future, though
all parties involved will need to ultimately embrace the idea.