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,  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
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
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
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
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
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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