The implications of mandatory mediation on the principle of voluntariness in the mediation process

Abstract

The mediation process is a type of Alternative Dispute resolution. The process differs from other types of conflict resolutions in that the main objective is that the parties do not seek a judgment on the dispute but try to reach an agreement with the aid of an independent third party who acts as a mediator. Mediation thus depends on the willingness of the parties to reach a settlement to the dispute. An important principle in mediation is therefore the voluntariness of the parties. Voluntariness is expressed throughout the mediation process when the parties freely choose to enter a mediation process, when the parties hold the right to withdraw from the mediation process at any stage and when the parties express the free right to accept or reject the final proposal for agreement. However, mediation processes are also found in a mandatory form, i.e. when parties enter a mediation process either because it is established by law or an adjudicating authority or else when the parties are referred to mediation by a court decree. The study aims to understand the implications of mandatory mediation in view of the basic principle of voluntariness in mediation. The study takes a holistic approach by understanding the characteristics of conflict resolution, the principles of mediation, the role of the mediator and the legal aspect that regulates such an important process within the legal system. The study is based on research of literature relative to conflict resolution, the process of mediation and relevant papers regarding the subject together with a qualitative research carried out through interviews carried out with experts from the legal field. The study gathers its conclusions following an analysis of the research and proposes a set of recommendations which may be applied in eventual legislations or regulations regarding the process of mediation.