Amanda Weiner Research Paper Outline Mediation Spring 2012 MANDATORY MEDIATION I. II. III. Introduction Why Mediation Should Be Mandatory (Advantages) A. Benefits of mediation B. Empirical studies Disadvantages of Mandatory Mediation A. “Forcing” Parties to Mediate B. Lack of participation C. Outcomes of Mandatory v. Voluntary Mediation Concerns About Mandatory Mediation A. Cases involving substantial power imbalance (i.e., domestic violence) B. Cases involving parties of other cultures C. Other Related Concerns 1. How will mediators be assigned to cases? a) Are there enough mediators to handle the number of mandatory mediations? b) Are these mediators qualified? c) Will the “mandatory” aspect of mediation have a negative affect on mediators? (possibility of being overworked, etc.) d) Fairness to the Parties (1) Assigning the “Proper” Mediator to a Case (a) Minimizing the Risk of Prejudice (b) Conscious of Gender/Culture Roles (2) Extent of Mediator’s Knowledge of Dispute Prior to Mediation 2. At what stage in the dispute will mediation occur? a) “Early” Mediation v. “Late” Mediation (immediately before trial (1) Effects on the Parties (a) If “Early”—hopeful that an agreement can possibly be reached, can avoid time and costs associated with litigation (b) If “Late”—contentious relationship, might as well just go to trial, pressure from lawyers to proceed to trial (2) Effects on the Mediator (a) If “Early”—can prepare, plenty of time to work with the parties, learn about them and their dispute
V. Conclusion MANDATORY ADR- Barriers, Incentives and Effectiveness Introduction Encouraging parties to explore settlement of their differences through ADR is a good thing. However, imposing mandatory ADR may not necessarily be. This essay will present the arguments for and against mandatory ADR. It will demonstrate that those factors that contribute to the advantages and disadvantages of mandatory ADR can also influence the overall effectiveness of mandatory ADR through creating incentives and reducing barriers to it. Mediation is arguably one of the most widely used of alternative dispute resolution processes, and many techniques share its characteristics. It is therefore on mandatory mediation that this paper will refer to. It is recognised that without encouragement or even compulsion, few litigants will use ADR. Voluntary participation is an important assumption of most ADR methods. There has been an ongoing debate of whether mandatory ADR makes a difference to the success or effectiveness of ADR. A key contributor to the success of mandatory ADR is the participation of the parties. This essay will argue that mandatory ADR will only be most effective if it is complemented with voluntary or consensual participation in the ADR process, or more specifically, if parties voluntarily participate in good faith and a common desire to resolve their dispute. What is mandatory ADR? Most Commonwealth courts and tribunals have a power to refer a matter to ADR. Referral can be both mandatory and compulsory. Referral can also be both discretionary and compulsory in that the referrer has a discretion to refer the dispute to ADR with or without the consent of the parties or both mandatory and voluntary in that the disputes are referred to
(b) If “Late”—Overwhelmed, rushed, lack of knowledge, pressure to reach agreement (3) “Early” vs. “Late” Mediation—Which will be more successful? Will mediators be more accountable for their actions? a) Will they be forced to defend their actions? b) Will the mediator’s role have to adjust accordingly? c) Accountability for the Outcome—Will mediators face more “lawsuits” or be accused of “abuse of discretion” when the parties are unhappy? Effects on the Adversary System a) Does mandatory mediation interfere with individuals’ freedom of choice/access to trials? b) Will mandatory mediation undermine the nature and purpose of the legal system? (1) Fewer cases will go to the courts (2) Fewer cases will undergo judicial/public scrutiny will not be able to establish precedent or structural reform (3) Mediated agreements do not have to abide by legal norms
ADR but only with the consent of the parties. The following table outlines the options available.