Compulsion to Mediate

Paper Summary:

This paper argues that mandatory mediation is an unnecessary part of the Australian legal system. The paper describes the continuing debate amongst legal professionals as to just how effective the mediation process is when it is compelled upon parties, rather than entered into voluntarily. It suggests that mandatory mediation not only destroys the consensual nature of the mediation process, but it also does not guarantee the same level of natural justice, as found in the court system.

Table of Contents:
Introduction
Deterioration of the Consensual Nature of Mediation
The Course of Natural Justice
A Litigant's Right to Trial
Who Should Pay?
Conclusion

From the Paper:

"As a form of ADR, it is undeniable that mediation can have positive ramifications for not only the parties involved, but also the courts. The success of mediation is often attributed to its consensual nature. However, by mandating mediation, its consensual nature is lost, lowering the potential for a successful outcome. The power of the courts to enforce mandatory mediation infringes the right of a litigant to trial and delays the progression of a case through the courts. This is in addition to the increased financial burden placed on parties if they are compelled to mediate, which can be particularly disadvantageous to poorer litigants. As compared to litigation through the courts, mediation gives little guarantee that natural justice will be served. These factors, combined with the erosion of the consensual nature of mediation, suggest that mandatory mediation is an unnecessary part of the Australian court system."

Sample of Sources Used:

• Astor H & Chinkin CM, Dispute Resolution in Australia, Butterworths, Sydney: NSW, 1992.
• Carvan J, Understanding the Australian Legal System, 5th ed, Lawbook Co., Pyrmont: NSW, 2005.
• Corkery JF, Starting Law, 2nd ed, Scribblers Publishing, Mudgeeraba: QLD, 2002.
• Mack K, Court Referral to ADR: Criteria and Research, Australian Institute of Judicial Administration Inc., and the National Dispute Resolution Advisory Council, Melbourne, VIC, 2003.
• Sourdin T, Alternative Dispute Resolution, Lawbook Co., Pyrmont: NSW, 2002.

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