Developing Frameworks for the Evaluation of Mandatory Mediation: Considering Systemic Transformation in Saskatchewan
Date
2005-02
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Degree Level
Masters
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.
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Degree
Master of Laws (LL.M.)
Department
Law
Program
Law