The phrase “it’s the principle of it” is a noble and praise-worthy notion but it also causes knots to form in the stomach of negotiators and mediators.
Our legal system is predicated on the administration of justice, and the goal is to afford justice to all members of society.
However, our justice system is an imperfect, blunt instrument. The modes of compensation are limited.
Claims in civil cases often aim to financially compensate an aggrieved party for some harmful act. A contractor botched a roof repair. How much will it cost to fix?
But disputes rarely fall solely within the realm of “how much will it cost to fix this?” The couple with the botched roof is probably pretty cross with their contractor. Maybe they want an apology. Maybe they don’t feel as though they have been treated fairly by the contractor and resent that it took starting a court case to get the contractor’s attention.
Conflicts can often be as much about the emotional and procedural issues as they are about the substance of the matter.
Sometimes these emotional issues, while valid, can get in the way of the best outcome.
The problem is that courts can generally deal only with the substantive issues. While the couple might feel vindicated by a court decision in their favour, it will cost a lot of money to get there. This is why most courts mandate some form of mediation before trial. Most cases do settle.
When attempting to settle a dispute, it is always important to identify your best alternative to a negotiated agreement.
What happens if you can’t settle?
How much will court cost? What is the probability of success? What orders can a court make to remedy the problem?
Imagine a situation where your neighbour’s house has badly damaged downspouts and eavestroughs. A particularly heavy rain results in water pooling between the houses and floods your basement. You de-cide to take them to court to recover the cost of your insurance deductible. In pre-trial mediation, they offer to pay half your deductible and fix the faulty downspouts that caused the flooding.
“No. I want them to pay the full cost and fix their downspouts,” you reply.
“It’s the principle of it.”
But consider the alternative: A court will not order them to fix their downspouts. It would be up to you to take them to court to recover damages if it were to happen again. All of that costs money.
Therefore, it is important to seriously consider the proposed settlement, even if it is not the ideal outcome. It is superior to your next best option.
The courts can enforce a settlement agreement like any other contract, effectively giving you the teeth to fix the problem for good. In my experience, both sides are far more likely to honour agreements reached be-tween them than they are an order imposed by the court.
Is it worth modifying your principles to solve the problem for good? Sometimes you have to make the best of a bad situation.
Brayden Gulka-Tiechko, associate lawyer in McDougall Gauley’s Moose Jaw office, helped research and draft this article.