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Compulsory Mediation within Civil and Criminal Law: Good, Bad, or Just Plain Daft

Sep 18, 2013

From the article on ILennon: A Comment on Legal Developments:

...Mediation is a process which carries with it undeniable successes, and which when used in the right circumstances is a altogether good thing, providing access to justice, a speedy and affordable process and a way of resolving disputes in a manner designed to restore and preserve relationships. “In all dispute resolution methods there is always pressure for change”[i], one such change mediation faces is the possibility of being made a compulsory precursor to litigation. This paper takes a short but critical look at the possible outcomes if a statutory requirement meant that mediation become compulsory within Civil and Criminal claims.

If mediation were to be turned into a compulsory part of the mediation process, then it would have to be carefully scrutinised, modified and constructed by lawyers, politicians the government to ensure that it was something compatible with government backing. This would mean statutory regulation of the process, legal clarity of the rules and a financial framework that works across the board. Providing it, in turn with a better, formalised structure, regulation of training and accreditation of mediators, higher quality of mediators, appeals processes, greater understanding, and improved access to justice, lower costs and a greater level of satisfaction from the parties involved.

 Mediation when used properly and, in the right context is a beautiful tool for solving disputes where litigation is not needed and, should not be entered into. It is a flexible and informal process that allows the parties to vent their feelings and then work together to reach a solution that works for everyone, something that perhaps the court would not have been able to find. It does all of this while working to repair and maintain a working and amicable relationship between the parties so that they can continue to work together in the future without having to resort to a legal process again.

... But surely that’s a good thing isn’t it? Greater access to justice for all? A way of solving disputes which is open to those of even the most humble of backgrounds as well as those born with the privilege to fund litigation for the smallest of slights?

 Well, no, it’s not a good thing. “The essence of mediation is that it should be voluntary”, the low costs incurred in mediation at present make it a tempting solution in two unenviable circumstances. Firstly, to the government as a means of lowering the costs of running an expensive and time consuming justice system, and secondly to the individuals involved in litigation that are looking for a cheaper, and quicker alternative. A key issue with this is that mediation is forced away from its roots, and turned into a cost saving solution; “it is important that mediation is seen as a dispute resolution process in its own right and not one which is only used in the face of the enormous costs of the alternatives of litigation or arbitration.”

...The crux here, taking a step back from the extreme, is that the very core principle of mediation, and the reason it works so well is that it is voluntary. If you take two people who are at utter loggerheads, and place them in a room to get them to talk over their issues, then to get a resolution they have to want to be there. Without that drive to reach an amicable solution, the process cannot succeed.

 To conclude, compulsory mediation has the potential to drive up costs, slow down the process, damage and reduce the quality of resolutions, and also, by so greatly violating and removing the core principle of mediation and formalising the entire process, bring about an end to the current process of mediation that we seek to promote. To make mediation formalised, compulsory and regulated is to stop it from being mediation and, is frankly a wonderfully terrible idea.

Read the full article.

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