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The Judicialisation of Mediation

The Judicialisation of Mediation

Are you concerned that mediation is an overly legalised process?

 

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I’ve heard that expression before and I think the notion that mediation is a process within was broadly referred to as “alternative dispute resolution,” and by definition, that implies alternative to conventional litigation.

 

It includes arbitration, conciliation, mediation, all the alternative forms of resolving conflict. I think the impression is that it really should be outside of the law. It should be something which people should have access to as an alternative to litigation, but we’ve become very intertwined with litigation.

 

You know, Lord Woolf [SP] made some phenomenal changes to civil procedure codes in the late 1990s and embodied the requirement for parties to consider mediation as part of conduct of a case. That was enormously, widely welcomed by users and practitioners alike. I think that was really the right way to go.

 

Also, it meant that, actually, mediation became more intertwined legal process. I think, in some respects, unwittingly, we probably, we have walked into that. I don’t think it’s wrong or a bad outcome at all, but I think is going to be more difficult to extricate mediation from the law.

 

I think there are lots of very successful initiatives around that already, internationally, where mediation is purely a contractual alternative to proceeding down an established litigation route.

 

We’ve got, I think we’ve got a very interesting situation, but yes, I think it’s probably a bit unfair to say we’ve really slept walked into it.

 

I think there’s been a very conscious, certainly in the United Kingdom, a very conscious decision to say, “Litigation, generally, is very expensive. Access to justice is generally very expensive. Mediation can help enable better access to justice. It can make the whole process more effective.”

 

I think there is a lot of thought that has gone into positioning mediation more closely to the law and giving it a real… You know, if you’re going into multi-door, sort of, courthouse type scenario, you’ve got Litigation is door “A” in front of you. Arbitration is door “B”. Mediation is door “C”.

 

It’s all one and the same, but, I think, a lot of people still see it as possibly an overly-legalized process, as opposed to a consensual facilitation of an issue without getting involved in the nuts and bolts of legal argument.

About the mediator

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Mike is an Internationally recognised authority on mediation and dispute resolution. He started his career as lawyer in South Africa in the mid nineties, came to the UK shortly after that and joined the department of trade and industry as a insolvency and corporate recovery lawyer. It wasn’t long after that he left his legal career to leaving join one of Europe’s leading specialist providers of mediation and dispute management services where ... View Mediator