Mediation is dangerous because it is open to abuse and bad faith.
This view is held by many lawyers and is understandable considering the environment in which they work. Many lawyers operate in the adversarial litigation arena where nobody can be trusted and bad faith, sadly, abounds. (Note that the increasing popularity of collaborative family law is a clear response to this reality.) The lawyer’s job includes protecting his or her client from unfair and abusive tactics of delay and non-disclosure. Yet clients who choose mediation are willing to assume this risk, perhaps because they do have greater trust in the honesty and fairness of their spouse than the clients of lawyers. And the mediation process is designed to detect and weed out bad faith quickly. A good mediator can figure out pretty quickly if one party is acting in bad faith and has the authority to terminate the process immediately. The Agreement to Mediate specifically addresses ethical issues of honesty and bad faith. And judging from the evaluation results of Ontario’s Mandatory Mediation Program, bad faith is not a big problem even in mandatory mediation. In practice, this is an obstacle that mediators rarely encounter.
Stay tuned next week for the final myth…