Mandatory Mediation? Essay

1060 words - 5 pages

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 ...view middle of the document...

(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...

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