Patience, Mediation Skills & Judicial Activism
This is a story about a dog. About custody and access. Not in the family law sense but about 2 sophisticated people, one a dog breeder and the other a veterinarian. The vet buys the dog from the breeder. They enter into a co-ownership agreement sanctioned by the Canadian Kennel Club as the dog is a pure bred. The idea behind the whole scheme is to let the vet and her family have custody of the dog allowing the breeder visitation and breeding rights along with each having the right to show the dog. About 10 months before the critical event, the breeder complains about the vet's alleged refusal to allow visitation. The breeder does nothing to seek enforcement of the right and 10 months later obtains the dog on the pretense that the dog is to be shown at an event but refuses to return the dog after that.
The vet sues for the return of the dog or alternatively damages representing the replacement cost. The breeder counterclaims for damages for the cost of showing the dog and for lost stud fees. And away they go thinking that their problems will all be solved with the judge's decision.
But no one counsels the litigants that the court's decision will do nothing to sever their incendiary relationship let alone sever the co-ownership. This wonderful agreement does not contain a basic provision for termination and determination of sole ownership once terminated. The court's hands are tied. No relief will extricate them from this dilemma.
What to do? Let them litigate and live with the stupidity of their agreement or take an aggressive and risky step to initialize a possible global settlement? Is it appropriate for a judge to use mediation skills at this point? If so, what skills should be used? Is the judge riding a fine line of being seen to pre-judge if a mediated settlement is not reached, especially if she chooses to suggest a format for resolution?
Sometimes it is worth the risk when you see that the parties having put themselves in an untenable position and intransigent in their views to intervene, reality check, evaluate, criticize positively and promote settlement by suggesting a framework based upon an analysis of their mutual and exclusive interests.