Mandatory Mediation – will it work?

Parties to most disputes are currently told that the mediation process is voluntary. And many volunteer not to explore the option further. However, the balance of voluntary participation in mediation is subtly changing. Recent government initiatives are said to be responses to the pressures on the court and tribunal system. Is this a creeping movement towards making mediation mandatory? 

Family

On April 22nd 2014 attendance at a MIAM (Mediation Information and Assessment Meeting) became compulsory by s.10 of the Children and Families Act. The purpose of a MIAM is to establish whether mediation for separating couples in a dispute is the most appropriate way to reach resolution. If the matter proceeds to court, proof that mediation has been considered will be required. Although there is an obligation to be informed about mediation, mediation itself is not mandatory. The government’s figures state that successful mediation occurred in 73% of cases during April – December 2013.

Employment

From 6th April 2014, employees have had to notify Acas before taking a case against an employer straight to tribunal. This notification was initially voluntary; since 6th May 2014, it has become mandatory. During the voluntary period over 4000 employees across the country have contacted Acas, initially completing an online form. Contacting Acas pauses the time limit within which a claim must be lodged with the tribunal. There is then a period of 4 – 6 weeks during which Acas can conciliate between the parties. If either party refuses to participate and/or efforts to settle the case do not success, a conciliation certificate is issued and a claimant can lodge his/her claim.

Civil

The EU Mediation Directive is approaching its 6th year anniversary dealing with cross-border disputes. The recent study from the European Parliament re-ignites the debate about whether mediation ought to be mandatory and makes for interesting reading. Some of the 816 respondents to the questionnaires reside in countries where it is already mandatory to mediate (Italy and Romania). The impetus in both those countries to make mediation mandatory appears to be the back-log of court cases which could no longer be tolerated.  http://www.europarl.europa.eu/meetdocs/2009_2014/documents/juri/dv/execsummary_/execsummary_en.pdf

Whether the lack of legal aid, the increase in Litigants in Person or the rise in recently accredited mediators will combine to tilt the balance of the key ingredient of the voluntary mediation process remains to be seen. To compel potential claimants to know about mediation/conciliation is one thing. To make them use that method is another. Before that stage is reached, the mediation community needs to ensure parties are qualitatively satisfied with the outcomes that are reached in mediation. At this stage, the imperative is for claimants who proceed to court to demonstrate that they were fully aware of the mediation option before issuing.

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About helenc

mediator, barrister, restorative justice facilitator
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