Mandatory_Mediation_

Mandatory Mediation – Why Not' MBA – Managing in the Legal and Ethical Environment September 19, 2010 Mandatory Mediation – Why Not' As we know, litigation is expensive and time consuming. In addition, with the backlog of cases pending in most courts, could take years until tried, is turning many to alternative dispute resolution (ADR) as a means of settling their disputes. (Clarkson, Miller, Jentz, & Cross, 2009, p. 41) Mediation is a method of dispute resolution where the parties meet with the assistance of an impartial mediator tin an attempt to resolve the dispute and agree to a settlement. The goal of mediation is for all the parties to reach a mutually satisfying agreement without litigation. The final solution is not determined by a third party but by those in the dispute. One of the biggest advantages of Mediation is that it is not as adversarial in nature as litigation. It tends to reduce the antagonism between the parties, allowing them to resume their formal relationship, while minimizing hostility. For this reason, mediation is often the preferred form of ADR for disputes involving business partners, employers and employees, or other parties involved in long-term relations. (Clarkson, Miller, Jentz, & Cross, 2009, p. 42) Globally, we are seeing a trend towards mandatory mediation, requiring the parties to mediation prior to having the case tried in court. The European Mediation Directive (2008/52/EC) (Directive), dated 21 May 2008, is part of a European-wide initiative to promote and regulate the development of mediation throughout the EU. The Directive contains mediation procedures, which covers both cross-border and domestic disputes, only applying to claims/rights which can be freely disposed of by the relevant parties ("Diritti Disponibili") as opposed to rights which cannot be freely disposed of by the relevant individuals (this is mostly the case, for example, under Italian family law). (King, 2010) The Directive recommends that mediation should be used more frequently as an alternative method of dispute resolution. It is suggested by the directive that “mediation can provide a cost-effective and quick extra-judicial resolution of disputes in civil and commercial matters through processes tailored to the needs of the parties”. The move to mandatory mediation should reduce the volume and length of cases. It also argued that “agreements resulting from mediation are more likely to be complied with voluntarily and more likely to preserve an amicable and sustainable relationship between the parties. (Dawson, 2010) There is a global trend of mandating mediation before a case could be heard in a court of law, as seen in other countries including Italy and some Canadian and provinces. Should the United States move in this direction as well' Advantages There are many benefits and advantages to mediation. • Much less costly then litigation to both parties as well as the legal system. • Quicker resolution to disputes (usually completed in a day or two) • Creative solutions can be attained in mediation that would not be available in court, since the parties structure the resolution of the dispute. • All information revealed at mediation is confidential, is legally privileged, and cannot be relied on in any subsequent litigation or arbitration. Unlike public trails, mediation is done privately. • Reduction in court backlogs, as more disputes are settled through mediation. If not settled, many mediations have resolved some issues shortening the time and number of issues needed to bring before the court. • As argued in the Directive, “agreements resulting from mediation are more likely to be complied with voluntarily and more likely to preserve an amicable and sustainable relationship between the parties”. • In many cases, a mediated settlement, allows the parties to continue their relationship due to the informal and less advisory process. • Attorney review of settlement is still allowed and in more complex cases even suggested. • Parties may still have the option to go to litigation if needed. Disadvantages One of the biggest disadvantages of mediation is if it fails. If mediation fails, the parties will still need to litigate, making it even more costly due to the costs of the failed mediation. There are also concerns with good faith participation of all parties, confidentiality, and enforceability of attained agreements. Mandatory mediation in itself cannot completely reflect the standards and requirements that have made voluntary mediation so successful for willing participants, but can afford parties in conflict an opportunity to achieve a join resolution to a conflict in a similar, but more regulated process. Nationwide acceptance and implementation of the Uniform Mediation Act and mediator guidelines can help resolve the areas of privacy, confidentiality, and enforceability of agreements. (Rifleman, 2005) While mediation has its advantages, it is not always advisable. In cases where there is domestic violence and the hands of one of the parties or if there is a large disparity in monetary resources where one party is unable to afford litigation if mediation isn’t successful as well as in cases where one party does not have any intention to attempt resolution through mediation. Conclusion It is a well-known fact that mediation is less costly to both the parties and the legal system, and not as adversarial in nature as litigation. In my opinion, the benefits outweigh the disadvantages and there is a strong case to mandate mediation prior to allowing the case to be heard in court, when deemed appropriate. We are already seeing some states have already enacted mandatory mediation laws in cases involving debt, foreclosure, and domestic relations (divorce and child custody) cases. (Rifleman, 2005) With the trend, already moving towards mediation as an alternative to litigation it is important to build a structure such as the Mediation Act in order to have consistency in process and implementation. References Clarkson, K. W., Miller, R. L., Jentz, G. A., & Cross, F. B. (2009). Business Law Ttext and Cases. South Western, Centage Learning. Dawson, M. (2010, May 27). Lexis Nexis Academic. Retrieved September 18, 2010, from Lexis Nexis: http://www.lexisnexis.com.vlib.excelsior.edu/hottopics/lnacademic/' King, R. (2010, May). The Eurpeon Mediation Directive Is Implemented in Italy. Retrieved September 18, 2010, from Ashurst.com: http://www.ashurst.com/publication-item.aspx'id_Content=5172 Rifleman, J. (2005, December). Mandatory Mediation: Implications and Challenges. Retrieved September 18, 2010, from Mediate.com: http:/www.mediate.com/articles/benefits.cfm