Whether Mediation Should Be Mandatory In England & Wales (Research Paper Sample)
Critically discuss, with reference to the below quotation, whether mediation should now be obligatory in England & Wales.
The essay MUST critique and compare from civil mediation, restorative justice, and family mediation, and similarities of the approaches in these areas of law.
“As a species... we have an innate aggression, which, when we are in dispute, transforms itself from a mere instinct to 'survive’ into an acute need to crush the opposition.” Paul Randolph, ‘Compulsory Mediation’ (2010) 160 NLJ 7412
Citation style is OSCOLA
Mediation refers to the process where a neutral person (the mediator) helps two or more people to discuss and solve disputes. The mediator helps the people in disputes to communicate about their issues and help them find solutions that are fair and acceptable to those involved. The mediator does not have any interest in the outcome and he or she cannot impose a solution. There is no statutory regulation of mediators but they expected to abide by the code of conduct, be insured, be trained, continuously engage in training and development activities also be able to offer and access to complaints process where it is needed. In England and Wales, mediation has become a significant feature in most litigations. Courts in England and Wales are supposed to encourage mediation in appropriate cases. The Woolf Reforms of 1999 made mediation a feature of civil litigation by giving judges the mandate to stimulate the application of mediation in all stages of litigation.[L Cohen, Mandatory mediation: A rose by any other name. Mediation Quarterly, 9(1), 33-46. 2011.]
It seems that there is a movement that is working toward making mediation compulsory in England and Wales. This is because mediation has appeared to the most promising and most effective method of solving disputes at all levels. Although mediation is a simple process used in disputes resolution in many cultures around the world, research has shown that the benefits of mediation are now understood as they were before. Some of the benefits of mediation are that its outcome is more flexible than that of litigation and it also has large benefits of reducing public expenditure and also relieving congestions in the court. Most parties are satisfied with the outcomes of mediation and it is considered to be less stressful than litigation.
Mediation has been endorsed by policymakers and members of the judiciary in both the common and civil law jurisdictions. This has led to many countries worldwide to encourage mediation in both legislation and procedural rules. Measures and opinions adopted by various countries vary concerning how this policy should be implemented. Countries such as Germany, France, Hong Kong, they have limited their measures by educating parties and promoting the possibility of mediation. In other countries such as Italy, Australia, and Canada, before accessing the court, they have undergone mediation. This has become the norm in these countries. In England and Wales, the story is different. Despite the widespread need to use mediation among policymakers and the judiciary, the courts have declined the need of parties to participate in mediation.
Currently, there is resistance to the use of mediation by both the disputing parties and the lawyers. This act of resisting mediation is not only in England and Wales but also in other countries. Based on the success of various jurisdictions that have implemented mediation, it is confirmed that the English lawmakers should re-consider the chances of mandatory mediation to handle this issue. This article aims at analyzing some of the arguments against and for compulsory mediation and show why mediation should be declared compulsory.
The situation in England and Wales
One of the most important endorsements of mediation is found in Access to Justice a report by Lord Woolf. He used mediation to playing an important role in the civil judicial system. Lord Woolf, however, did not state that mediation was to be compulsory but instead he proposed reforms that were implemented in the Civil Procedures Rules that that sought to promote mediation (Butlin, 2000). In England and Wales, there have been debates...
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