Frank Gomberg on...

Why mediation makes sense

Read anything about mediation and you’re likely to learn why it’s a better way to settle disputes than going to court. Mediation is faster, cheaper, fairer, less stressful and more private than a trial.

But after 40 years of practice and 4.500 mediations, I have two personal favourites that seldom make those benefits lists.

Mediation is today’s natural forum for advocacy. By advocacy, I don’t mean the grandstanding and browbeating that non-lawyers often associate with courtroom prowess. I’m talking about the art of persuasion, the ability to build a logical argument for your side and to defend it against both legal and common sense attacks. In our clogged and often inefficient court system, lawyers spend most of their time at trial fighting for an unpredictable and uncertain outcome. In the mediation process, a much higher percentage of lawyer's time (and fees) is spent advocating for their clients’ interests.

Mediation gives participants some control over outcome. I love our legal system. It’s one of the great benefits of living in Canada. But taking a civil dispute, such as a personal injury matter to trial is like consigning your fate to half a dozen people pulled at random from a fast-food line-up. And judges may not be experts in the subject matter of the trial they are presiding over. Having been a lawyer, advocacy teacher and court-watcher for 40-plus years, I’ve seen several court findings that defy logic. In mediation, neither side wins everything—but at least each party has the option to get something. If any of my family members had a dispute, I’d strongly urge mediation over trial for this reason alone.

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