Unwilling Actors: Why Voluntary Mediation Works, Why Mandatory Mediation Might Not

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Osgoode Hall Law Journal, ISSN: 0030-6185, Vol: 36, Issue: 4, Page: 847-885

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Smith, Gary
article description
This article examines the debate over the introduction of mandatory mediation in civil litigation. It analyzes why and how voluntary mediation works in order to measure how the process might change under the new regime being implemented in Ontario. The underlying narrative structures of mediation are exposed using semiotic theories commonly employed in the study of theatre. This article will show that mediation, when imposed on unwilling parties, will hinder its efficacy and compromise its theatrical processes. The author concludes that the best way to ensure that making mediation mandatory does not discredit the efficacy and benefits of the process is to encourage greater voluntary participation among members of the legal community and their clients.