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Compulsory Mediation |
Litigation is being seen more and more as just one of the alternatives to resolving disputes. The others are arbitration, mediation, conciliation and expert determination. These processes involve binding or non-binding intervention by a third party to try to bring disputing parties together. They are, if you like, privatised litigation. |
Until recently, the defining features of these methods of alternative dispute resolution are that they have been voluntary. Parties might bind themselves in a contract to resolve a future dispute by one of those means and in that sense they are not voluntary, but the parties voluntarily entered into that contract in the first place. |
Mediation is one example of alternative dispute resolution which has been adopted by the courts. The courts have been keen to encourage parties to mediate and there is provision in the court rules for mediations to take place and are encouraged if the parties so desire. |
But now, the courts have gone one step further. Recent changes to the Supreme Court Rules now mean that, in appropriate circumstances, the court can order parties to mediate whether they wish to or not. |
This is to be welcomed for many disputes which are crying out for a mediation but for which there is no will by at least one of the parties. But it remains to be seen how the judges use the provision. Used wisely, there is no doubt it will be of benefit. Used inappropriately, it will lead to a situation where an unwilling party to a mediation can use it as a cynical exercise of delay and information gathering which just increases the already slow and costly litigation process. |
Therefore, while the idea is good, it remains to be seen how successful it will be in practice. |
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