Mandatory Mediation: Challenges and Perspectives
Mandatory Mediation (Challenges and perspectives)
Conflict resolution has become a rigorous process that is not only time consuming but also an expensive exercise. Across the world more so in Europe, the justice system there are having a hard time dealing with all cases and conflicts brought before the courts largely due to the growing number of cases( Nolan-Haley 21). Unlike in the past when some parties decided to settle some issues outside the court system, today the trend has been reversed, and cases of smaller magnitude are taken to the corridors of justice. The lack of alternative resolution mechanisms is seen as the leading cause for this pattern. The result is a backlog of cases of which have stayed in the system for decades. For instance, a recent survey showed that in Italy alone, close to six million cases are lying unsolved within the country’s justice system. This figure is alarming considering that new cases are also brought forward day by day.
This is what necessitated the formation of the Alternative Dispute Resolution Movement (ADR) within European countries to provide an alternative resolution mechanism through mediation. Since its formation, ADR has enjoyed steady growth over the past decades and today its presence is seen as a breakthrough in the justice systems across the countries where it operates. The essence of ADR is to promote mediation as an alternative to tool to the justice delivered by courts of law. The jurisdiction of this body falls within civil, and common law and its activities have been intensified within the period of its existence to reduce further the burden on the justice system.
The formation of the ADR led to the birth of a new term within the precincts of law. This term is known as Mandatory mediation and it has been gaining popularity with the growth of ADR across Europe (Hutchinson, Campbell 132). Mandatory mediation is a modification of the familiar term Mediation which can be defined as a process of solving conflicts outside the court system through negotiations that bring together the disagreeing parts with the view of reaching an amicable agreement. Mediation is common especially in times of civil wars that have plagued most countries across Africa and the world. Unlike mediation, mandatory mediation is undertaken under the circumstances that dictate it should be taken as the only way to resolve the existing differences. It is an alternative to the conventional legal process in a court of law but the parties undertaking it experience a degree of compulsion to do so rather than out of their choice. This is where mandatory mediation is gaining entry and it is projected that its growing presence will be a great asset to the legal system in countries where it has been able to make its presence felt.
The European Union and Council upon realizing the importance of ADR has been at the forefront in advocating for the adoption of the recommendations of the process and make it a mandatory system in countries within its jurisdiction (Relis, Tamara 124). The EU has come to the reality that the need for mandatory mediation cannot be forfeited at the expense of the conventional justice system .It ought to be incorporated into the system to enhance the performance of the legal systems by reducing the backlog of cases that threaten to expose the system as inept to deliver justice and fairness to its citizens. This shift of perception have been attributed to the general feeling that mediation is more benefiting to both parties. Mandatory mediation cannot be fully understood minus knowing its characteristics.
Characteristics of Mediation (and mandatory mediation)
Mandatory mediation is a process that is characterized by various traits that differentiate it from the ordinary mediation although most of these characteristics are similar. To come up, with a clear understanding of mandatory mediation, we shall have a look at the general features of mediation. One of the key characteristics of mediation is that it involves two or more parties in a dispute over issues relating to a contract (s).Therefore, mediation is only called for when the two parties in disagreement see reason to review their stand and iron out the outstanding issues and come to a common agreement.
In most cases, mediation is undertaken voluntarily except when there are civil procedures that compel such parties to sit down and mediate. Such circumstances are the ones that lead to mandatory mediation. Both sets of mediation are overseen by a third party who is perceived as a neutral party in trying to bring the two parties together. This party is referred to as the mediator and is elected upon agreement by both parties regarding his suitability and the conviction that he will remain as impartial as possible during the entire process. The mediator serves as a tool that encourages the parties to abide by the drafted resolutions. The mediator also has the powers to provide any assistance required by providing new conditions and terms that were previously not drafted but with approval from the two parties.
Mediation is a process that is undertaken under a high level of confidentiality. Under such procedures, the exercise is undertaken in a private location although there is provision of progress at regular intervals. In most occasions however, this process has been common in settling civil cases such as those related to divorceand, therefore, the degree of confidentiality is higher than determination through an open court sitting. In that case, each of the parties at the negotiation table controls the kind of information they intend to put on the table before the negotiator. On the other hand, one or all parties may decide to engage the mediator separately to limit the type of information intended for the other party. It also follows that all the facts presented in the negotiation table cannot be presented before a court of law as evidence.
Mandatory mediation is a process whose success depends on other factors rather than the two parties, the matter on the table and a negotiator. The road to successful mediation starts right at the point where both parties agree to negotiate. This is the first key step that paves way for subsequent processes. The two parties must come to the realization that mediation is necessary after which they settle on a mediator. The two parties are then eligible to sign an agreement and set their preferred venue. The next key step is to re-evaluate the key issues on which the mediation is centered. Adequate preparation is key in ensuring that the end objectives of the mediation are met. It gives the parties the chance to equip themselves with relevant facts on which they will build their case and argue out before the mediator. On the mediation table, the parties have an obligation to reach a mutual understanding that falls within the set terms. These conditions are set at an earlier stage and they are the ones within which any argument is raised and the eventual decisions made. After an agreement is reached, it is required by law that the compromise is documented and kept for future reference in case one party decides to violate the agreement.
The process of mediation is not complete at the point of signing by both parties in the presence of the mediator but rather a long-term undertaking that needs a follow-up to check on the progress made by both parties about the set terms that facilitated the signing of the agreement. The period of implementing a mediated agreement is usually dictated by the nature or complexity of the matter under settlement but regardless of that, the mediator is required to follow up on the process and see whether both parties are acting according to the agreement that they signed on the day an agreement was reached. Any detected faults can prompt the mediator to intervene and reprimand the party whose actions are in violation of the said agreement.
Mandatory Mediation in Europe
The European Union has been the focal advocate for mandatory mediation over the last couple of years and their insistence on adopting the ADR model has served as a catalyst in changing the shift of other countries towards mediation as an alternative to the justice system. The European Parliament has, through legislation set a deadline for member states in adopting ADR as a way of speeding up the delivery of justice within their systems. Despite all this efforts, the results have not been satisfactory about the projections of the EU. There is still some resistance from member states who have openly questioned the legality of mandatory mediation arguing that it kills the voluntary feeling and is more of a forced system rather than one exercised freely. This widespread criticism has threatened the progress already made, and there is urgent need to address this issue by laying down proper policies and also sensitizing the stakeholders on the need for adoption.
The EU is at crossroads on whether to go ahead with the implementation of mandatory mediation or take a more conservative approach and embrace mediation that does not threaten the element of voluntariness at all. Such is the model adopted in the United States and one that has achieved significantly over the last few decades. There is a general agreement on the role of mediation as a tool of accessing justice. However, the conditions under which it is undertaken bring different dimensions to the process. Whereas the normal procedure of seeking justice is defined as open and a right, mandatory mediation is seen as being forced on the individual. There is a general feeling that mediation is a shortcut to the attainment of justice. Since its introduction, some countries have declined to prioritize mediation.
Mediation in Europe can be traced back to the mid-90s when communities encouraged by traditional arbitrators who felt it was an amicable way of solving conflicts that could guarantee a high level of satisfaction to the aggrieved parties. The processes of arbitration through mediation were seen as a way of improving the relationships in the society and promote cohesiveness rather than divide the society as a result of differences emerging from mediated agreements. This trend would later receive a huge boost after the International Chamber of Commerce adopted mediation as their preferred mode of conflict resolution on cases related to commercial dealings.
The popularity of ADR through mandatory has also gained momentum across Europe due to the emergence of cross-border conflicts. The agreement to adopt such a resolution was reached at after wide consultations among member states and, in the end, it was agreed that each nation had the responsibility of promoting the use of mediation as a tool for resolving border conflicts to stem out he rising tensions over border control. This resolution will later get approval from the European Parliament. After this endorsement, the EU established a mediation regulatory body whose mandate was to oversee the adoption and implementation of the act of parliament. It was also given the responsibility of setting up guidelines and a code of conduct for mediators to increase the credibility of the entire process. The process has also undergone some major phases that highlight its importance as well as its weaknesses.
Phases of Mandatory Mediation in Europe
Since its introduction and the eventual adoption by member states of the EU, mandatory mediation has undergone a transformation from a mere alternative to the conventional justice system to a more accepted process. It is viewed as more of a necessity rather than an option due to the immense impact it has on the scope of Law about justice and fairness. Today, a majority of lawmakers argue that mandatory mediation is compulsory within any legal system, and its role extends beyond just resolving conflicts. The directives that facilitated the establishment and adoption of this process gave member states the right to practice mandatory mediation within the jurisdictions of their constitutions.
England is one of the member states of the EU and whose adoption of mandatory mediation has generated a heated debate among its citizens and policy makers. The bone of contention across Britain is whether its adoption and application are against human rights as embodied in the European Human Rights Convention. This debate followed cases filed by individuals subjected to mandatory mediation who termed the exercise as being forced on them thus violating their rights. In the end, the court of appeal though acknowledging the need for mandatory mediation conceded that it was almost impossible to determine the circumstances under which an individual ought to be compelled to take part in mandatory mediation.
This raging debate went high when the European court of justice decided to intervene as a result of a case involving two Italian companies. The court sought to demonstrate the legalities that validated the establishment and adoption of the mandatory mediation act arguing that its application does not violate human rights. In its submission the court stated that by requiring the aggrieved parties engage in a mandatory mediation process before heading to court, all the rights and privileges of the parties involved were not in any way under any threat. This ruling set a stage for adoption of mandatory mediation in Italy with its jurisdiction extended to civil cases and cross-border disputes. Today, the law is still in force and has formed the basis for the resolution of many cases across the country. (Duryee, Mary 213)
Why Mandatory Mediation?
As earlier stated, mandatory mediation came up following the quest by policy-makers and ancient regimes to find alternative mechanisms of resolving conflicts. The existing justice system was seen as incapacitated to deliver justice quickly and within a manageable cost. The number of cases brought before the justice system was on the rise whereas the number of those that were resolved was not improving. The result was a backlog of cases that led to the questioning of the ability of the courts to clear the cases within the required time. Therefore, the adoption of ADR and in particular mandatory mediation was meant to provide citizens with an alternative means of solving their conflicts to best suit their interests in terms of time and cost.
Mediation is also recommendable because in the entire process, the two parties in disagreement have the time and opportunity to take control of the proceedings. Unlike in court arbitration procedures where the judge dictates the tone and direction of the arguments, a mandatory mediation process is controlled by the parties by the guidance of a mediator. The parties can engage closely and exchange ideas and arguments that set the mood for the proceedings. This is important as at the end of the process, each party feels satisfied with the way he/she had put his/her case forward.
Mediation unlike the court of law judgement delivers its verdict in terms of an agreement rather than a conviction of one party. The objective of mediation is to bring the parties together and come up with a resolution that best suits the interests of either individuals or groups. In fact in a mediation process, the end resolution is seen as a win situation for both parties ( Cheldelin, Sandra 233). After presenting their arguments, the mediator seeks to engage the parties so as to bring them to a point of agreement on the outstanding differences. It is therefore bold to point out that a conflict resolved this way leaves both parties satisfied with the verdict as compared to court arbitration.
In most cases, settlement through mandatory mediation has been termed as free and fair especially regarding infiltration by vices such as bribery. Over the years, the justice systems across the world have been tainted with allegations of bribery aimed at manipulating the outcome of cases. This has resulted in declining public confidence in the systems. But with the mandatory mediation process, the confidence of both parties in the mediator is well within their satisfaction because they participate in his appointment. Also, the whole set-up of the hearing reduces any loopholes for such to take place. This puts the credibility of this system well above the traditional court system.
The Negative Side
Mandatory mediation as an ADR is not short of its shortcomings, and there is always an argument if the negative outweighs the positive. Settlement in a mediation hearing may fail to be realized unless the parties reach on common agreement. This is particularly common in cross-border conflicts whereby because of the vested interests that exist among the parties. Since resolution by mediation is purely based on the parties’ willingness to reach an agreement, the same parties may fail to agree and, therefore, the whole exercise becomes futile. This is in direct contrast to the traditional justice system where judgment is delivered based on the judges’ satisfaction with the facts presented by both parties.In a case where no settlement has been reached, the economic implications also take toll on the parties .Some resources and time directed towards the exercise are seen as a waste altogether.
Although the costs accruing from such a process are considerably lower compared to the traditional justice system, the feeling of loss cannot be avoided. Mandatory mediation as compared to the conventional voluntary mediation system does raise concern in regard the element of good faith participation. It does raise a great concern about the satisfaction derived from the eventual settlement under the forceful nature of the system.
On the other hand, one of the major weaknesses that have been attributed to mandatory mediation is the inability of the mediator or other involved parties to enforce the judgment contained in the settlement. This is common in cases involving nations whereby a mediator lacks the mandate to force the parties to abide by the agreement that seeks to end a conflict. In case one or both parties defy any clause contained in the agreement, the mediator is tasked with ensuring that such a party is reprimanded and forced to act according to the agreement. In many occasions, the mediator lacks the powers to execute this mandate thus letting the parties break the agreement at will with the knowledge that nobody can intervene.
Implications on the Modern world
The term mandatory mediation just like the real act has been gaining steady acceptance among many nations across Europe as well as the African continent. Although the application of mediation has been waning among the major countries that were in the forefront in crafting its establishment and adoption, its effect has painted a picture of success and failure. The consequence is a world that is thorn between prioritizing mediation, scrapping it or having it as an alternative justice system altogether. Despite this state of events, there is a degree of expectation among many states that mediation will continue to play an integral role in the delivery of justice in years to come.
However, the introduction of mediation is seen by many as a loophole for individuals and nations to commit atrocities with the knowledge that they can get away with their selfish interests through mediation. Take an example in Africa where there are numerous civil wars between the incumbent government and militia. These parties engage in wars that have led to the death of thousands of people and destruction of property with the knowledge that at the end of it all, the intervention by the international community is bound to recommend mediation as a way of resolving the outstanding conflict.There is, therefore, a feeling that the existence of mandatory mediation has caused a lot of harm to the traditional justice system, especially in Africa.
Mandatory mediation as a practice and subject is an integral of the modern justice system regardless of the recognition it has enjoyed since inception. Based on the works of famous scholars such as Jacqui Nolan-Haley, it is clear to note that mediation is slowly forcing its way into many justice systems in the world. The key challenge is keeping the core values of mandatory mediation intact so that it maintains its intended meaning and at the stage of inception. These distinguishing characteristics should be maintained if mandatory mediation is to have a place in the scope of Law. This will also help do away with the growing notion that mediation is a mere shortcut to justice that is undertaken by parties who fear that the magnitude of the atrocities committed will hand them a tougher penalty if presented before a court of law.
The key areas of concern raised by those opposed to this process have to be urgently addressed by policy makers to improve on its credibility. Ranging from participation in good faith, confidentiality assured and the ability to execute mediation, such concerns have to be evaluated individually and as a unit about the way they impact on the initiation and sustainability of the process of conflict resolution. Presently, the relationship between mediation and the conventional court system is seen as cold with each party blaming the other for the dwindling confidence of the public in both systems.
There is also growing need for policy makers and nations across the world, especially in Europe to highlight the importance of mediation beyond its key values such as time and cost effective. This is aimed at doing away with the perception that mediation is merely a weak system whose validity can only be backed by the need to clear a backlog of cases from the court files. A sustained advocation for mediation based on its ability to curb harmful arbitration before a court of law is a strength that can be exploited to popularize the system. (Winston &David 273)
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