Breaking Barriers in Order to Access Justice: Improving Diversity in Canada’s Mediation Field

Share:

The justice system in Canada is based on the lofty principles of fairness and equity, with the goal of providing access to justice for all individuals. One of the key elements of the spectrum is the use of mediation. Originally a voluntary process, which is now mandated, mediation is a process in which a neutral third-party mediator assists the parties in reaching a mutually acceptable resolution to their dispute. In Canada, the field of mediation has seen significant growth in recent years, with an increasing number of individuals and organizations turning to this alternative dispute resolution method to resolve conflicts outside of the traditional court system.

Mediation is crucial to the justice system because it reduces the burden on the courts, given that pre-pandemic there was a three-year wait to get from pretrial to trial and thus impacting the quality of justice. It also gives parties more control over the outcome of their dispute, empowering them, and allowing them to come up with creative solutions that may not be available in a court of law. Mediation also promotes cooperation and collaboration, leading to better long-term relationships between parties.

Despite the importance of mediation, there is a significant lack of diversity among mediators in Canada, potentially due to the newness of the field. This lack of diversity is a problem because it undermines the legitimacy of the justice system, at least perceptually. The justice system should be representative of the people it serves, and if the mediators are not representative of the population, it raises questions about their ability to understand and address the cultural and ethnic-specific needs of all parties.

Currently, the vast majority of mediators in Canada are middle-aged, white, male, and from a high socio-economic background (Ontario Bar Association, 2017). According to a report by the Ontario Ministry of the Attorney General, only 16% of accredited mediators in Ontario are from visible minority groups, despite the fact that visible minorities make up over 25% of the province’s population. In addition, women are underrepresented in the field of mediation, with only 33% of accredited mediators in Ontario being women.

This lack of diversity creates several problems. Firstly, it can create a barrier to access to justice for individuals from diverse backgrounds, who may not feel comfortable or adequately represented by mediators who do not share their experiences or cultural backgrounds. For example, if a person from a marginalized community is facing discrimination, they may not feel comfortable speaking openly to a mediator who does not share their experiences or background. This can result in a lack of trust in the mediation process and a preference for more traditional legal methods, which can be more time-consuming and expensive.

Secondly, the lack of diversity also creates a potential for bias in the mediation process. Given that the mediator brings his/her own cognitive processes to the table, if the mediator is not familiar with the cultural, social, or economic backgrounds of the parties, they may unintentionally perpetuate stereotypes or biases. This could result in an unfair outcome for one or more parties, leading to a loss of confidence in the mediation process.

Moreover, a lack of diversity in the field of mediation can limit the range of perspectives and approaches available to mediators when dealing with complex and nuanced disputes. For example, in some cultures, parents or matchmakers play a role in arranging marriages between individuals. However, in Western cultures, the idea of arranged marriages may be seen as archaic and limiting individual choice. When mediators come from a range of cultural, racial, and gender backgrounds, they bring with them a diverse range of skills and knowledge that can be invaluable in resolving conflicts and achieving mutually satisfactory outcomes.

Improving diversity in mediation requires a multifaceted and concerted approach that includes both training and education, as well as efforts to increase representation in the field. For example, some organizations are taking steps to increase diversity in their training programs, by providing mentorship and support for individuals from underrepresented groups who are interested in becoming mediators. Despite the example that some organizations are taking steps to increase diversity in their training program, the field can only be fully populated if the government intervenes and actively changes the field.

One example of an organization that is actively working to promote diversity in mediation is the ADR Institute of Canada. The Institute has launched a Diversity, Equity, and Inclusion Committee, which is focused on developing strategies to increase representation and support for mediators from diverse backgrounds. Despite their existence for some 50 years, mediation is still relatively unknown to some populations and communities.

In the United Kingdom, The Civil Mediation Council has made a concerted effort to increase diversity among mediators by actively recruiting and training mediators from underrepresented communities, including ethnic minorities and those with disabilities. They also require accredited meditation training providers to demonstrate a commitment to diversity and inclusion in their training programs.

Similarly, the Australian Dispute Resolution Association has implemented a diversity and inclusion policy that aims to increase the number of mediators from diverse backgrounds, including those from culturally and linguistically diverse communities, indigenous communities, and those with disabilities.

Critics argue that programs in both the UK and Australia have a tendency to marginalize mediators by assigning them to specific groups based on their own cultural background. For instance, a black mediator might be expected to handle only cases involving black individuals, while an Indian mediator would primarily mediate for Indian parties. Such an approach lacks opportunities for cross-cultural knowledge sharing between colleagues with diverse ethnic and cultural backgrounds.

Improving diversity amongst mediators in Canada can be achieved through inclusive practices. One way to improve diversity is to encourage more individuals from diverse backgrounds to become mediators. This can be achieved by providing education and training opportunities to individuals from diverse backgrounds and by promoting the benefits of becoming a mediator in these communities.

Another way to improve diversity is to ensure that the selection process for mediators is inclusive. This can be achieved by implementing policies and procedures that promote diversity in the selection process. As well as to foster and mentor processes to enhance the skills of newer practitioners. For example, organizations can implement affirmative action policies that require a certain percentage of mediators to be from diverse backgrounds.

Furthermore, organizations can ensure that their mediation services are accessible to all individuals, regardless of their background or socio-economic status. This can be achieved by providing language interpretation services and ensuring that the physical space where mediation takes place is accessible to individuals with disabilities.

Mediation organizations can partner with community organizations that work with diverse communities. These organizations can help to identify potential candidates from underrepresented communities and can provide support and guidance to these candidates as they pursue a career in mediation. These partnerships can also be used to establish scholarship opportunities to individuals from underrepresented communities who are interested in pursuing a career in mediation. These scholarships can provide financial support for training and development opportunities, as well as mentorship and networking opportunities. The government has to have the appetite to invest in this process to ensure equity for all. Thus far, this has not been forthcoming.

In addition to promoting greater access to justice and a more nuanced approach to conflict resolution, there are also several benefits of diversity in mediation that can improve the legal system as a whole. For example, a study by the Harvard Negotiation and Mediation Clinical Program found that diverse mediators are more likely to create innovative solutions and achieve better outcomes in complex disputes. This is because they bring a wider range of perspectives and experiences to the table, which can help to uncover creative solutions that might otherwise have been overlooked.

In conclusion, the lack of diversity amongst mediators in Canada is a growing concern that can limit access to justice for marginalized communities. Other countries have successfully implemented inclusive practices to increase diversity amongst mediators, and Canada can learn from these examples. By actively recruiting from diverse communities, providing mentorship and training opportunities, and creating a welcoming environment that values diversity, mediation can improve access to justice for all Canadians. It is important to recognize that diversity amongst mediators is not just a moral imperative but also a practical one, as it can lead to better outcomes for all parties involved in mediation.

Special thanks to Dr. Ally for his support and revision.

References:

Australian Dispute Resolution Association. (2022). Diversity and Inclusion Policy. https://www.adra.net.au/diversity-and-inclusion-policy/

Castellanos, I., Schuler, S., South, J., & Way, F. (2019). Improving diversity in commercial mediation. Centre for Effective Dispute Resolution (pp. 1–12). CEDR Foundation. https://www.cedr.com/wp-content/uploads/2019/10/Executive-Summary-Report.pdf

Harvard Negotiation and Mediation Clinical Program. (2016). Diversity and Dispute Resolution. https://hnmcp.law.harvard.edu/files/2016/05/Diversity-and-Dispute-Resolution.pdf

Kirby, J. (2021, March 15). Diversity in Dispute Resolution. Resolution Institute. https://www.resolution.institute/news/diversity-in-dispute-resolution

OBA Releases Report on Lack of Diversity in Mediation and Arbitration in Ontario. (2022, March 29). Ontario Bar Association. https://www.oba.org/News-Media/Press-Releases/2022/OBA-Releases-Report-on -Lack-of-Diversity-in-Mediat

Peters, E. (2018, February 22). Pale, Male, and Stale: Addressing Diversity in Arbitration. ADR Institute of Canada. https://adric.ca/pale-male-and-stale-addressing-diversity-in-arbitration/

The Civil Mediation Council. (2022). Our Diversity and Inclusion Work. https://civilmediation.org/our-work/diversity-and -inclusion/