Developing Frameworks for the Evaluation of Mandatory Mediation: Considering Systemic Transformation in Saskatchewan

Abstract

In 1994, the Saskatchewan government implemented a mandatory mediation program, requiring litigants (for the first time) to mediate civil files. Many governments and civil courts have since adopted similar programs across Canada, moving mediation from the periphery to the center of civil process. The magnitude of this shift has not yet been fully captured in the accompanying research. Conventional evaluation research has used a narrow focus, driven by concerns for efficiencies. I will argue that conventional research provides an inadequate framework for continued study in this area, and will illustrate this through an analysis of the distinct character of the Saskatchewan program. The Saskatchewan objectives are tied, not to the increase of efficiencies, but to "systemic transformation" - an end result which depends on change in the culture oflitigation and change in lawyers' professional roles and identities. Qualitative research methods provide the program evaluator with a widened lens, and the Saskatchewan Evaluation (2003) makes some significant gains in this direction. I will describe the study's qualitative approach, and will organize the study's results in terms of quantitative and qualitative data. Although the study gathered rich information on lawyers' and clients' experiences, it left many questions unanswered. Using a grounded theory method, I will reanalyze the study data. A deeper analysis reveals common stories of clients and lawyers - glimpses into what is happening beneath the surface of the program's operation. I will conclude that the mandatory mediation program in Saskatchewan has inspired significant change, but has fallen short of systemic transformation. Both clients and lawyers view mediation as having unrealized potential. While clients see their lawyers as largely determining the process' success, only half of lawyers are attentive to the impact of their role. Changes in professional identity, a necessary ingredient in systemic transformation, are only beginning to occur. Using the concepts of story, ritual and metaphor to explain the cultural variables that influence lawyers, I will begin the construction of a broader analytical framework. I conclude that not only is more and different research needed, but that systemic transformation depends on a renewed commitment to dialogue and relationship between program managers, mediators, and legal professionals. ii