Should Mediation should be a compulsory step before resolving dispute?

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Should Mediation should be a compulsory step before resolving dispute?

Advantages

  • YES IT SHOULD BE COMPULSORY
  • According to Dreadon 2015, it maintains relationships between the parties
  • According to Reyes 2014, it provides flexible solutions
  • Compulsory for matrimonial cases (S.10 Children & Families Act 2014)
  • It is cost effective - cheaper than going to court
  • It is much quicker than the court system if successful
  • Eases pressures on the courts as less cases will be heard
  • Provides confidentiality & privacy - especially for big companies as some bad media may affect their reputation. The courts are open to the public
  • CPR states it should encourage ADR and issue proceedings as a last resort so why isn't compulsory?
  • Woolf stated going to court is too slow, too uncertain, to unequal and too expensive - mediation can help and contribute to resolving these issues of court
  • Mediation has proven to be successful in Canada. In ontario, it was estimated at $10,000 was saved in 37% of cases and between $5000-$10000 in 28%.
  • Informality and privacy suits resolving certain disputes.
  • Mediators are also quick to locate - provides flexibility

Disadvantages

  • NO IT SHOULD NOT BE COMPULSORY
  • According to Wilson, if mediation was compulsory and participants are forced to participate, it could inhibit the negotiation process and create barriers making it difficult to resolve
  • It may also prolong the dispute and waste time if unsuccessful
  • Halsey v Milton Keynes General NHS Trusy - Court of Appeal identified it could involve denying litigant access to the courts & contravene Article 6 - Right to fair trial
  • Parties may not be willing due to the severity or complexity of the case.

Evaluation

Discuss the role of a mediator - Neutral 3rd party which assists parties with negotiation on how to settle a dispute but cannot enforce a solution. The mediator breaks down barriers and overcomes difficulties. They improve relationships and rebuilds communication. They try to reach a solution which satisfies both of the parties.

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