Introduction
Mediation is a structured process where two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the help of a mediator. Mediation has been defined in this work as a voluntary process where a third...
Introduction
Mediation is a structured process where two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the help of a mediator. Mediation has been defined in this work as a voluntary process where a third neutral party agreed upon by the participants to the process facilitates a discussion between the parties to the end of assisting them to reach a desirable solution to their disputes.
In this definition, it is imperative that the process is a voluntary one. One of the oft-repeated tenets of mediation is that it is voluntary. Voluntariness and neutrality are core principles of mediation and therefore necessary to enable mediation to maintain its nature. The success or hype of mediation is based on the power to revealexpose the full extent of the issues of the parties through its flexible, informed and consensual process. The primary requirement of mediation is that the parties agree to engage in the process.
Despite the recorded advantages of mediation, few people subscribe to the process. Litigants are quick to go to court. This is likely because of the fear of the unknown. For instance, the same way a little child is sceptical to try out a new meal despite the sweet aroma and enticing look, a participant in a dispute is always hesitant in trying out mediation.
Another reason for reluctance in involving in mediation, is the desire to have someone else solve the issue for you, i.e. the longing to let someone else take the responsibility of sorting out the dispute. The adversarial nature of man and the desire to win also drives the urge to litigate instead of mediate.
De Palo and Cominelli, are of the opinion that the effect of some of the prescriptive legislative interventions which they called “manifesto laws, coupled with the absence of funding may contribute to the reluctance of parties to resort to mediation and this also affects its success’.
These reasons although more evident in Africa that is acclimated with the authoritative and dictatorial system, it is still relatable to England. As a result of these drivers, mediation has been slow in development.
Due to the recognition that mediation is effective and flexible and imperative to obtaining a quick resolution by authorities, national legislations, policies and directives and rules have been promulgated to promote and make mediation a part of the court system. To make mediation widespread, policymakers, government have promulgated policies and guidelines that encourage, motivate, influence, urge and mandate disputants to mediate. To this end, the voluntary nature of the mediation has been jettisonederoded and we can see elements of compulsion and coercion in the new system. Court mediation has cost mediation its transformative nature as the drive is to reach a solution and not to maintain relationships.
In the area of cross-border civil disputes, in 1998 there was a call for the European Court (hereinafter EC) to issue a Green Paper on the use of mediation. These calls were answered with the April 2002 Green Paper which was approved in 2008. According to Hanks, the Green Paper opines that ADRs offer a solution to the problem of access to justice faced by citizens in many countries due to three factors: the volume of disputes brought to the courts are increasing, the proceedings are becoming lengthier and the costs incurred by such proceedings are increasing. The Green Paper considers ADR as a way of improving the right of access to justice enshrined in Article 6 of the ECHR and suggests that such processes could be used to ‘complement judicial processes’. Relevantly, the Green Paper also warns that states should hesitate before implementing mandatory mediation as it is ‘likely to affect the right of access to courts’ and ‘may therefore prevent access to justice in the meaning of Article 6(1)’. The European Court of Justice’s (ECJ) support for mandatory out-of-court procedures in general is particularly significant for the understanding of the right of access to civil justice in Article 6(1) ECHR. This is specifically relevant in England, where courts have taken the contrary view of Article 6, finding that they are unable to compel non-consenting parties to mediate.
People are now mandated, pressured, influenced and coerced into mediation either by clearly stated rules, suggestions or even implications of cost for refusing to mediate.
What is Mandatory Mediation?
Mandatory mediation is any process where the parties lack the choice about their participation, and it is where the element of choice or voluntariness is diminished. It may be totally absent or partially absent. By partially, I mean being mandated into the process but not within the process. Most mandatory mediation are in the area of family dispute.
Mediation was made mandatory or compulsory to improve the legal system where it was once an alternative. Mediation has become an integral part of the legal system. It is even called court-mediation (in some places, court-annexed mediation, court-referred mediation, or court-connected mediation. Court- annexed mediation somehow suggests that the building or place the mediation takes place is the court while court-referred sounds like it is being recommended by the court.)
For some, it is important that a knowledgeable, intelligent, impartial person make a quick decision as to who is right so they can return to their lives. The action word here is “quick” which is what is lacking in litigation. Mandatory mediation is sometimes adopted to help the vulnerable. It has been argued that it is violation of a person’s fundamental right to make attendance of a mediation compulsory and a condition for accessing the court.
Factors Influencing Mandatory Mediation
There are a number of factors that influence the decision to implement or permit mandatory mediation. Some of the factors are structural, external and domestic factors. Structural factors such as legal tradition can strongly influence the domestic legal and political environment. For example, differences between civil and common law systems might impact on a state’s approach to mediation. External factors, such as membership to regional or international organisations also impact on a state’s legal framework. As will be seen, these factors are particularly relevant in the European context with the focus on facilitating free trade within the European Economic Area and the application of the European Convention on Human Rights (‘ECHR’). Finally, domestic factors are also important in the movement towards mandatory mediation. These include the time it takes for cases to reach trial, the cost of litigation, the prevailing legal culture and political climate, and the attitudes of the legal profession, judiciary and general public.
Further, for some states such as Italy where delays in civil litigation are endemic, rather than hindering access to justice, mandatory mediation schemes have the potential to assist in ensuring that disputants are able to access appropriate dispute resolution mechanisms within a reasonable time by reducing the caseload of courts while retaining parties’ rights to have recourse to the courts if no settlement is reached.
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