Mandatory Mediation in Common and Civil Law Countries - Essay Example

 Mandatory Mediation in Common and Civil Law Countries Mediation is a cheap, flexible, informal, and quick practice in which a neutral third party resolves a dispute. Compared to traditional litigation, it is faster and able to bring resourceful and enduring resolutions, mainly because of its principles of principles of discretion, neutrality and voluntariness. Owing to this, it has crept into the court systems owing to its advantages and cost-saving measures both to the courts and to the wrangling individuals. However, the process cannot be successful in case it is not entirely and non-binding. Mandatory mediation may in this case not be beneficial to parties who are forced into it through a court system. As long as it is mandatory, and the aspect of willingness and voluntariness are removed, there is no appropriate motivation to settle cases by the parties. Although mandatory mediation may differ across countries, it is always charted in national and international statutes or laws and applicable in court. Common law system countries and civil law countries present some differences in the way mandatory mediation is implemented. Common law system countries use mandatory mediation more prevalently than civil law countries who proceed with considerable caution. The process of litigation is a complex process, which is usually avoided by many people. The civil justice system in the UK is already exhausted of cases, which have not been resolved because of various legal justifications. This negatively impacts on the involved parties because of the increase in the cost of the various court cases as time elapses. Mediation can reform the civil justice system of the UK because it ensures there is efficiency in the dispensation of justice. Consequently, savings are made and time management is upheld. In this respect, the aggrieved parties are satisfied with the mediation dispute resolutions. The mutual satisfaction of the concerned parties is never achieved in a trial setting. The introduction of mandatory mediation in civil cases aims at reducing the backlog of unresolved cases in courts of law. Mandatory mediation is a demonized element in many legal jurisdictions, although it does not affect the delivery of justice to the parties in the civil cases. Darbas (2010) asserts that the cost of mandatory intervention justifies the use of this method in the resolution of many cases.1 It is a better method compared to the trial because in the trial of a case, the judges can give a subjective ruling, which must be accepted. In mandatory mediation cases are resolved in an amicable manner without favor. The process is transparent and formal given that judicial sanctions can be imposed in case of failure to comply with the resolution of the mediator. The participation of the members is also monitored in the process of mediation. In case a member of the case is not co-operative, the sanctions are invoked. England has not embraced the principle of mandatory mediation because the country considers the principle as a coercive exercise. According to Hanks (2008), the punishment of the mediation parties makes the process to be considered a coercive exercise.2 The penalties causes the parties to doubt the authenticity and validity of the entre process. This notwithstanding many jurisdictions, including the Australian government, the UK and the American civil law system, have embraced the principle. Mandatory mediation is considered to be a precursor to many problems in the resolution of cases. However, the mediation process can be embraced when it is a voluntary process than when it is a mandatory process. Additionally, the process ought to be informal in order to reduce the pressure associated with the formality of the mandatory mediation process. People usually dread the sanctions put by the court officials. This will definitely affect the victims and the defendants in the case. Mandatory mediation affords the parties an opportunity to expedite their case instead of spending much time in court. According to Darbas (2010), the mediation process enables the parties to be certain of the outcome of their cases before the conclusion of the case.3 This gives the defendant and the plaintiff an opportunity to reflect on how to handle the outcome of the case in advance. Additionally, there is no prejudice in this resolution because a venue chosen by the mediator is usually appropriate for all parties. The public is barred from watching the mediation process, hence providing the disputants with confidence and commitment to resolving the case. The decisions made during the mediation process are never admissible in a court of law as evidence. This implies that the disputants are free to interact and find a lasting solution to the predicament. According to Hanks (2008), mandatory mediation guarantees justice for the disputants because the cost of the mediation is relatively low.4 This makes the parties to be free to brain-storm on every possible solution to the case without any fear of retribution. Although some people are reluctant to indulge in mandatory conflict resolution, on account of subjugation of justice, the system remains the best alternative dispute resolution method. The aspect of formalizing the mediation process makes the parties to be thoughtful of their interests with regard to the case at hand. The process paves way for easy resolution of a case in a court. The platform for the disputants provides information, which the parties could not be free to provide in a court of law. The mediator must have experience in the mediation process in order to hold in settling a dispute. Experience in the mediation process provides the mediator with rough information on the expected reaction of parties at various points of the mediation process. Darbas (2011) posits that power imbalance is usually a challenge during the mandatory mediation process. This requires a strong-willed mediator.5 A skilled mediator serves as a good judge in a court setting. The advantage of a skilled mediator is that he enhances the exploration of all possible settlements of the case. Conclusion Compulsory mediation is prevalent in many legal jurisdictions and there is a need to demystify the common believes that mandatory mediation is coercive and subjective. The process will only be fruitful when all parties concerned are focused on the objectives of achieving a compromise between the disputants. People need to be enlightened of compulsory mediation in order for them to weigh their options. Disputants will be more willing to actively participate in the mediation process when they are fully aware of the implication of every decision made. Cost reduction is essential in the undertaking of mandatory mediation. Bibliography Darbas, M.B. (2010). Does a court ordered mandatory mediation deny right to a fair trial. Bill of Rights Journal, vol. 35(3) pp. 10 – 41. Hanks, Melissa. Perspectives on Mandatory Mediation. Forum: Perspectives on Mandatory Mediation. Hein online. UNSW Law Journal, Volume 35 (3) 2014. Read More