Brian Dawson dives headfirst into the mandatory mediation debate
Mediation is an entirely voluntary process, everybody knows that. So it follows that compulsory mediation is inappropriate. It is almost an oxymoron.
Indeed a number of well-known pillars of the legal community with brains the size of a small hatchback have told us, for very good legal reasons, that compulsory mediation is not the way forward. However, this shouldn’t deter us from playing devil’s advocate and taking time out to address the more simple questions of whether compulsory mediation could work in practice, and, if so, whether it would benefit the parties.
Arguments againt compulsion The arguments against compulsory mediation go something like this.
- Mediation is a voluntary process as mentioned above.
- Compulsory mediation breaches Art 6 (the right to a fair trial).
- Mediation adds another expensive stage to an already expensive system.
- Some cases are almost certain to succeed in court and not suitable for compromise.
- Some cases involve a point of law that should be resolved at trial.
So if we consider each of these arguments in the same order.
