Mediation, the Rule of Law, and Dialogue.

• Author: Acharya, Nayha

In this paper the author urges discussion on the legitimacy of mediation processes, a discussion that is not prevalent in legal scholarship. The author argues that mediation outcomes can be inconsistent with the rule of law given that the same case can have a different outcome depending on whether it is litigated or mediated. On the other hand, crucial and valuable aspects of mediation can result in a presumption of legitimacy. With the rule of law critique in mind, the author discusses how dialogue theory can be used to improve upon the mediation process.

The author begins by exploring the value inherent in the rule of law, which poses a conundrum for court-annexed mediation because it is not designed to administer law in the same way as adjudication. However, this does not make mediation illegitimate. Instead, a framework for mediation can be developed to encompass both rule of law values and mediation's unique characteristics. Mediation is not a watered-down version of litigation; it is a distinct process of dialogue that centralizes selfdetermination and consensual decision-making. The author then suggests that dialogue theory can serve as this grounding framework for mediation. Dialogue theory embraces the values of equality and dignity, which underpin the ideals of the rule of law and the key features of mediation. Under this framework, mediators must recognize that their primary role is to secure a fair dialogue and not to champion a settlement. Where there is hesitancy by one party to accept a settlement, the mediator should encourage the party to express their concern rather than forcing the settlement as this facilitates genuine dialogue. To ensure fair treatment of members of our communities, the author concludes by urging that the mediation process and its legitimacy be more widely discussed given its increased importance in the civil litigation system.

Introduction I. Exploring the Critique of Mediation as Contrary to the Rule of Law A. The Rule of Law: Why It Matters B. Responding to Rule of Law Concerns II. Mediation as Dialogue A. Rule of Participation B. Rule of Equality of Communicative Opportunity C. Rule Against Compulsion Conclusion Introduction

Mediation is gaining increasing relevance in the Canadian civil litigation landscape, given its relative speed, inexpensiveness, and simplicity compared to what is often seen as a cumbersome formal adjudicative system. (1) Access to civil justice depends on an efficacious legal system, but the legitimacy of legal institutions cannot rest only on efficiency. A good legal system must demand that when court-annexed mediation is used, participants are accessing a legitimate dispute resolution process, not just a more efficient or a cheaper one. Absent an assurance as to the legitimacy of the mediation process, the potential for substantive unfairness and procedural impropriety goes dangerously unchecked. To avoid this, we need to have a substantiated idea of what constitutes legitimate mediation. We must then consider whether Canadian mediation programs are indeed legitimate, and if not, we must determine how we can make them so. Yet theorization on the legitimacy of mediation processes has not seen much scholarly debate in Canada.

In the hope of beginning to fill this gap, I offer a conceptualization of what a legitimate court-connected mediation process must entail using dialogue theory as a grounding. This provides a starting point for further discussion and debate about what constitutes legitimate mediation, and how to operationalize it in a Canadian civil justice context. Such discourse is urgent in Canada, given that mediation has become intertwined within the civil litigation enterprise.

My starting point is to interrogate a key critique that questions the legitimacy of the mediation process on the basis that it is incapable of protecting the rule of law. In summary: the propriety of an adjudicative outcome depends on its consistency with the rule of law--to assess the legitimacy of an adjudicative outcome, the operative question is "were the existing laws (including procedural laws) applied properly?" In striking contrast, mediation invites participants to pursue a self-determined resolution of a dispute through communal formation of fresh norms. Pre-existing norms in the form of law may be relevant in the mediation process, but the legitimacy of the ultimate mediated outcome does not depend on consistency with law.

When mediating a breach of contract action, for instance, parties may be liable to pay damages in law, but may agree to specific performance in a mediation. In a personal injury matter, a defendant may realize that the injured party is unable to prove causation to a balance of probabilities standard of proof but may nonetheless accept responsibility and agree to pay a sum to the injured party to aid their recovery. An injured party may be entitled to a greater compensatory award in law but may accept a lesser sum in order to resolve the dispute faster. An ex-wife in a divorce proceeding may agree to less spousal support than she may be entitled to in law and instead gain more child support or greater access, and so on.

Such outcomes are inconsistent with the governing legal norms. As such, it would be unacceptable for a judge to arrive at these outcomes in an adjudicative context, but they are perfectly acceptable outcomes of a mediation process. In this sense, the mediated outcome is inconsistent with the rule of law. The common response of, "so what, if the parties agree on the outcome?" is not enough, because it is difficult to ascertain whether parties really do agree to the outcome in a meaningful sense, or whether they were coerced in some way--either by a more powerful party, or by the reality of being unable to afford adjudication. Exacerbating the problem, theoretical and empirical scholarship from other jurisdictions, discussed below, suggests that less powerful parties (like women or minorities) more readily give up their legal entitlements in informal dispute resolution. As such, the rule of law critique is not just an abstract theoretical issue--it brings to light that mediation is a potential avenue for exploiting vulnerabilities and perpetuating social inequities.

On the other hand, mediation has several crucial, valuable virtues, including (but not limited to) its non-adversarial orientation, its increased ability to affect uniquely tailored outcomes, and its prioritization of relationships and self-determination. (2) Recognizing such values, along with its relative efficiency, can result in a presumption of legitimacy, but this presumption must be substantiated. (3)

I use the rule of law critique as a starting point for my inquiry into legitimate mediation because it is grounded by some of the most central and dearly held values within traditional legal systems, and it highlights that mediation is starkly and fundamentally different from adjudicative dispute resolution. As I explain further below, both concepts are imperative to keep in mind in the task of proposing a viable framework for legitimate mediation. The development of this framework must involve engaging with the rule of law critique; it must demonstrate alertness to the risks that vulnerable parties may face in less formal dispute resolution; and it must appreciate the unique value and opportunity that mediation can offer.

I open in Part I by considering why the rule of law matters and what fundamental values it is designed to protect. Drawing on the insights of Lon Fuller, Joseph Raz, and Jeremy Waldron, I contend that it matters because it ensures that legal subjects are treated fairly, with dignity, and as inherent equals. These values are uncompromisable in any legitimate legal system. I suggest then, that the legitimacy of a court-connected mediation process lies in its consistency with the values that inhere in the rule of law. This, as I explain, poses a conundrum because mediation, in its very essence, is not designed to administer the existing law in the way that adjudication is. But, I suggest this does not mean that it is illegitimate to include mediation within legal institutions. The goal is to develop a framework for mediation that can encompass both rule of law values as well as the key principles that make mediation unique, powerful, and valuable. These key principles are self-determination and autonomous, consensual decision-making.

In Part II, I suggest that a way forward is available through dialogue theory. I suggest that Jurgen Habermas' discourse principles can serve as a helpful guiding framework to set out the conditions of legitimate mediation because they embody the requisite values of the rule of law (equality and dignity) as well as those of mediation (self-determination and consensual decision-making). Moreover, I explain why conceptualizing mediation as dialogue can help the players involved maintain a process that is as responsive as possible to the vulnerabilities of parties. Throughout my discussion, I point out debates and challenges that can arise in operationalizing the discourse principles as constructs of legitimate mediation in the hope that such debates will be carried forward in Canada soon.

The main purpose of this paper is to open a debate about how to define a legitimate mediation process. The approach I have adopted is to start by setting out the long-standing and contemporary issues associated with mediation and relating them to the umbrella concern that mediation is not oriented toward maintaining the rule of law. I then suggest that dialogue theory can help us arrive at a definition of legitimate mediation that can enable a reconciliation between the values of mediation and the values of the rule of law. In the end, having suggested dialogue theory as a grounding framework for mediation, I provide some comments on how a dialogue theory-based conceptualization of mediation may inform the...