Compulsory mediation sounds like a good idea but does it stand up to closer analysis?
Getting disputes settled out of court has moral worth although, I suspect, the drive at an official level is cost driven. Mediation or some other form of ADR has merit but forcing this upon parties may not be ideal. Experience has taught me those new to mediation are quite unsure and uncertain until they actually experience it, so adding resentment at being there to the mix may not be the best move. Mediation has to be the alternative, not another 'piece of process'.
Also, the enforced route brings with it, I would suggest, the potential to see people attempt to raise the other party(ies) behaviour towards or at the mediation and thereby compromise potentially the mediation process by seeking to strip it of its confidentiality.
I'll stick with 'willing horses' thank you but continue to evangelise the benefits of ADR.
I practice all types of ADR and my partner is a commercial litigator. Experience tells us that mediation is the most useful process available and even when not successful, mediating narrows the issues in dispute and hence saves costs in any later legal process.
Mediation can come up with solutions that no other process can and often solutions that at the beginning of the dispute, nobody was even contemplating, (as everyone is at this point normally focussed only on their own legal rights and obligations rather than finding a useful solution).
Compulsory or not, in my opinion for 99% of disputes, it’s always worth a try. I personally have no problem with it being compulsory. That said, in some ways it may be more appropriate to keep it voluntary and allow certain aspects of mediation to evolve over time, for example case law – or is this just going to allow the lawyers to make hay over issues such as when it is or isn’t appropriate to refuse to mediate?
Coming from a construction background and having seen the evolution of statutory adjudication and the rapid growth of the associated legal arguments, on balance I think making it compulsory may be the way forward as it will save a lot of similar types of legal arguments.
Whatever the arguments for and against, I believe the main push behind this is to save the government spending money. The government wants to start saving money today, not in ten years time, so I think we should all prepare ourselves for it becoming compulsory up to County Court level in the next year or two.
Ihab Abu-Zahra (Mr.) - 2 months ago
In my opinion once a dispute arises, the parties to the dispute are better placed to decide whether it is salutary to adopt alternative dispute resolution means prior to starting arbitration or litigation. Therefore, mandating mediation prior to starting legal proceedings may result in delaying the settlement of the dispute .
Compulsory mediation sounds like a good idea but does it stand up to closer analysis?
Getting disputes settled out of court has moral worth although, I suspect, the drive at an official level is cost driven. Mediation or some other form of ADR has merit but forcing this upon parties may not be ideal. Experience has taught me those new to mediation are quite unsure and uncertain until they actually experience it, so adding resentment at being there to the mix may not be the best move. Mediation has to be the alternative, not another 'piece of process'.
Also, the enforced route brings with it, I would suggest, the potential to see people attempt to raise the other party(ies) behaviour towards or at the mediation and thereby compromise potentially the mediation process by seeking to strip it of its confidentiality.
I'll stick with 'willing horses' thank you but continue to evangelise the benefits of ADR.
I practice all types of ADR and my partner is a commercial litigator. Experience tells us that mediation is the most useful process available and even when not successful, mediating narrows the issues in dispute and hence saves costs in any later legal process.
Mediation can come up with solutions that no other process can and often solutions that at the beginning of the dispute, nobody was even contemplating, (as everyone is at this point normally focussed only on their own legal rights and obligations rather than finding a useful solution).
Compulsory or not, in my opinion for 99% of disputes, it’s always worth a try. I personally have no problem with it being compulsory. That said, in some ways it may be more appropriate to keep it voluntary and allow certain aspects of mediation to evolve over time, for example case law – or is this just going to allow the lawyers to make hay over issues such as when it is or isn’t appropriate to refuse to mediate?
Coming from a construction background and having seen the evolution of statutory adjudication and the rapid growth of the associated legal arguments, on balance I think making it compulsory may be the way forward as it will save a lot of similar types of legal arguments.
Whatever the arguments for and against, I believe the main push behind this is to save the government spending money. The government wants to start saving money today, not in ten years time, so I think we should all prepare ourselves for it becoming compulsory up to County Court level in the next year or two.
In my opinion once a dispute arises, the parties to the dispute are better placed to decide whether it is salutary to adopt alternative dispute resolution means prior to starting arbitration or litigation. Therefore, mandating mediation prior to starting legal proceedings may result in delaying the settlement of the dispute .