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Mandatory Assessment is not the Same as Mandatory Mediation, but Both Concepts Undermine the Family Mediation Process - Essay Example

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Mandatory Assessment Is Not the Same as Mandatory Mediation, But Both Concepts Undermine the Family Mediation Process Name: Institution: Introduction The advent of the Alternative Dispute Resolution has been necessitated by the need to reform the legal justice system…
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Mandatory Assessment is not the Same as Mandatory Mediation, but Both Concepts Undermine the Family Mediation Process
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Download file to see previous pages In family law, mandatory mediation can be defined as a situation whereby couples are instructed by a court to resolve a dispute by attending meetings with a mediator..The essence of the meetings is to help couple to reach a compromise deal on the disputed issue. Court mandated mediation is envisaged to be a facilitated negotiation by the aggrieved parties through a mediator to unravel the underlying issues and possibly reach a fair settlement. In the United Kingdom, mandatory mediation can either be categorical or discretionary. Categorical mandatory mediation refers to cases whereby statutes provide that certain cases must undergo Alternative Dispute Resolution while discretionary mediation refers to cases where the presiding judge decides the cases the should undergo mediation. On the other hand, mandatory assessment is the continuous process of gathering information from various sources to help evaluate the most appropriate strategies for achieving the well being of the child and safety. The process of mandatory assessment involves a court appointed assessor who is required to work with the concerned family to assess the conditions on the ground. The assessor can also seek information from other sources deemed necessary and after the evaluation, the final report given to the court is critical in reaching the final judgment. Although mandatory assessment and mandatory mediation are different, both are compulsory dispute resolution modes aided by a third party. The report analyzes the impacts of the mandatory assessment and mandatory mediation in the context of family law. After evaluation of these effects, it is clear that these processes undermine the family mediation process instead of helping in the dispute resolution. Particularly, these concepts go against the fundamental principal of voluntary resolution of disputes and are also counterproductive especially in issues involving domestic violence. From this perspective, these mandatory processes may actually introduce new complications in the justice system on top of those already caused by the traditional system. Non Voluntary Nature The principal argument against mandatory assessment and mandatory mediation is that they impinge on the right to self determination. Mediation is a voluntary decision making process and every individual has the right to self determination. Hence the term “mandatory mediation” is itself oxymoronic. Coercion into mediation leads into serious reservations concerning the mediation process itself and its outcome. It has been argued that if couples are coerced into mediation, then there is a high probability that they may be coerced within the mediation itself1. She further opines that the preceding stages to mediation are a determinant of the direction that the mediation will take. Once a couple has entered into the mandatory mediation process, there is a high expectation placed upon them to reach an agreement. According to Hayes, the heavy expectation to reach an agreement may alter the meaning of mediation to the aggrieved parties. In the seminal cased Halsey v. Milton Keynes., [2009] EWCA 15, [2009]2, the court decided that “ to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to courts.” This court ruling shows that indeed there is a great controversy over the implementation of mandatory mediati ...Download file to see next pagesRead More
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