Whilst the Civil Justice Council working party’s report is considering the above question, the evidence so far suggests that generally the parties in a court dispute, don't want mediation.
I believe it is primarily because of a lack of understanding about the real aim of mediation. Parties sometimes fear it, because of a misunderstanding that they will be, forced to make compromise, or show their hand. They worry who will show first!
The problem is that all too often, mediation is considered too late in the day when the parties (with the help and encouragement of their litigation lawyers) are already too entrenched in their positions. They focus too much on the legal stuff and forget to consider what they REALLY want.
In my experience most parties to a dispute, just want it over. They want the dispute to go away. Yet litigation does not give you that- far from it!
is compulsion the answer then?
So compulsion may not be the best idea. But Mediation is most definitely not about giving ground and the process is completely confidential and no one has to show their hand if they don't want to.
True mediation is about giving both parties their chance to focus on what outcome they really want to achieve and mediation is best served up early, giving the parties a chance to settle, before the litigation lawyers set the boundaries and someone else (a judge) decides.
So I say let the parties decide for themselves. But let's educate people about the reality of good mediation.
read more on the Civil Justice Council working party’s report
Roberta Mason is a mediator. She was a solicitor for over 20 years and knows a thing of two about disputes and going to court. She has a real sense of social justice for ordinary people and small business owners