If a party required to participate in mediation does not do so in a way the court approves, can the court order that party to pay? This question raises several big issues. First, what source of law or agreement required the party to participate in mediation? Did that legal requirement specify what exactly the party must do in mediation? E.g., just show up? Participate constructively? Make generous offers? Then if that party allegedly breaches that duty (according to the mediator or opposing party) will the confidentiality of mediation prevent that allegation from reaching the judge? And if the judge does hear that allegation and concludes it has merit, what remedy will the court order?
These important and interesting issues are posed by a recent Ontario case in which a court ordered a party (an insurer) to pay due to its "sham" participation in mediation. An excellent analysis by Canadian mediator Rick Weiler is here. Mr. Weiler writes "Mediation is all about party self-determination. If an insurer, compelled to attend mediation, has decided for whatever reason that it doesn’t wish to settle the case (at least at the numbers being demanded by the plaintiff) should its conduct at the mediation attract cost sanctions? I think not."