The Advent of the Alternative Dispute Resolution - Essay Example

? Mandatory Assessment Is Not the Same as Mandatory Mediation, But Both Concepts Undermine the Family Mediation Process Introduction The advent of the Alternative Dispute Resolution has been necessitated by the need to reform the legal justice system. This refers to the use a dispute resolution model that does not utilize the court system. Some of the advantages of using this mechanism is that they result in the expeditious resolution of disputes and they significantly reduce the workload of courts. One of the modes of Alternative Dispute Resolution that is widely implemented is the mandatory mediation. In family law, mandatory mediation can be defined as a situation whereby couples are instructed by a court to resolve a dispute by attending meetings with a mediator..The essence of the meetings is to help couple to reach a compromise deal on the disputed issue. Court mandated mediation is envisaged to be a facilitated negotiation by the aggrieved parties through a mediator to unravel the underlying issues and possibly reach a fair settlement. In the United Kingdom, mandatory mediation can either be categorical or discretionary. Categorical mandatory mediation refers to cases whereby statutes provide that certain cases must undergo Alternative Dispute Resolution while discretionary mediation refers to cases where the presiding judge decides the cases the should undergo mediation. On the other hand, mandatory assessment is the continuous process of gathering information from various sources to help evaluate the most appropriate strategies for achieving the well being of the child and safety. The process of mandatory assessment involves a court appointed assessor who is required to work with the concerned family to assess the conditions on the ground. The assessor can also seek information from other sources deemed necessary and after the evaluation, the final report given to the court is critical in reaching the final judgment. Although mandatory assessment and mandatory mediation are different, both are compulsory dispute resolution modes aided by a third party. The report analyzes the impacts of the mandatory assessment and mandatory mediation in the context of family law. After evaluation of these effects, it is clear that these processes undermine the family mediation process instead of helping in the dispute resolution. Particularly, these concepts go against the fundamental principal of voluntary resolution of disputes and are also counterproductive especially in issues involving domestic violence. From this perspective, these mandatory processes may actually introduce new complications in the justice system on top of those already caused by the traditional system. Non Voluntary Nature The principal argument against mandatory assessment and mandatory mediation is that they impinge on the right to self determination. Mediation is a voluntary decision making process and every individual has the right to self determination. Hence the term “mandatory mediation” is itself oxymoronic. Coercion into mediation leads into serious reservations concerning the mediation process itself and its outcome. It has been argued that if couples are coerced into mediation, then there is a high probability that they may be coerced within the mediation itself1. She further opines that the preceding stages to mediation are a determinant of the direction that the mediation will take. Once a couple has entered into the mandatory mediation process, there is a high expectation placed upon them to reach an agreement. According to Hayes, the heavy expectation to reach an agreement may alter the meaning of mediation to the aggrieved parties. In the seminal cased Halsey v. Milton Keynes., [2009] EWCA 15, [2009]2, the court decided that “ to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to courts.” This court ruling shows that indeed there is a great controversy over the implementation of mandatory mediation and assessment. In case the process of mediation is made mandatory, it loses the true meaning of bridging the gap between the aggrieved couples. According to a research done in Oxford, it is evident that some disputants more often than not agreed to participate in the mediation because they wanted to impress the judges. Courts have put in place mechanisms to enforce mandatory participation requirement by the disputants. Under these regulations, the aggrieved parties have to exhibit goodwill by attending all the meetings. Therefore, the disputants thought that there case would not be damaged if they told the judge that they tried their hand in mediation. Some studies actually report that voluntary mediation led to a much higher level of settlement as compared to that of mandatory mediation processes. The mandatory mediation process is closely linked to the court process implying the autonomy of the negotiations. In view of family law, it is difficult for the couple with a dispute to act independently without feeling coerced by the courts. Effectively, the mediation process becomes more of an activity to satisfy the authorities and not a means of resolving the conflict. In the long run, the process ends up undermining the essence of true mediation in resolving disputes. Cases of Abuse Mediation is based on the premise that disputes can be resolved through negotiation and compromise. However, mediation in the context of abusive cases is inappropriate. The reason for this is that essentially, mediation is never focused on right or wrong and therefore does not punish the abuser. Also, mediation is based on the future therefore the abuses of the past are not given prominence and therefore may go unpunished. This is fundamentally unfair especially to the abused party since they are inherently forced to bury the past in the hope that the abuse will not continue in the future. Abuse in families is often difficult to pinpoint and it may not be fully revealed in the mandatory mediation process. As such, the mediators may overlook this critical factor and end up with half baked solutions that do not address the underlying problem. According to Garry, cases of family violence are usually kept secret and the onus is upon the mediator to weed out such cases3. Placing such responsibility on the mediator is unrealistic since the mediator will mostly rely on the information that the disputants reveal. There are no provisions for investigation before mediation occurs hence the issue of abuse may not feature. It has been argued that the success of effective mediation hinges upon the ability of the disputants to have relatively equal bargaining power. In cases of domestic violence, it is clear that there will be a glaring disparity in the balance of power. It is therefore difficult to come to a mutually satisfying settlement that will safeguard the battered party and that may be complied with. It is also evident that the battered party may not be able to articulate their interests adequately and hence the final settlement may not be in their favor. When the option of mandatory mediation, the more elaborate guidelines on investigating domestic violence such as the ACPO Guidance on Investigating Domestic Violence [2008] may be neglected thus putting the aggrieved party on further danger. Although the government has put in place policies that exempt cases involving abuse from mandatory mediation, it is still impossible to predetermine violence in family disputes unless the affected person speaks out. Mediation cases are first analyzed prima facie in which it is impossible to ascertain the occurrence of violence. Therefore, referring cases that may involve domestic violence to mandatory mediation trivializes such a grave offence. In fact, it can be argued that the courts are not giving domestic violence cases the seriousness that they deserve. This is because the mediation gives both partners equal ground on the negotiating table; a privilege that the abusive partner should not be given at all Client Confidentiality and Privacy The issue of privacy and confidentiality has generated a lot of debate ab initio. The big question has been on how private the negotiation process is considered to be. There are no clear cut rules on privacy and confidentiality rules that that the parties involved in the negotiation should observe. Theoretically, mediation should be a confidential environment in which an aggrieved party can air their side of the story in a liberal manner. According to Boettger (2007), the parties in a mediation process are encouraged to share their concerns without having reservations that the contents of the mediation process are not shared to third parties in the spirit of “good faith”4. However, both parties may be subject to the ambiguity and vagueness of the confidentiality provisions. For example, a court may consider invalid any confidentiality agreements in the mediation process if a consideration in the agreement infringes on any other law. The consequence of such eventuality is that the confidential issues during the mediation process can become public and damage the reputation of the aggrieved parties. Mandatory assessment also infringes upon the privacy y of the family. Essentially, the affected family is compelled by law to reveal every detail that the assessor deems necessary. Every family has issues that they consider secret and therefore it is unfair for the law to force them to act against their conscience. Also, the provision that the assessor may collect information form any other external source amounts to discussing issues of a given family to a third party which infringes on the right to privacy. The other danger of lack of confidentiality in mandatory mediation is that one party may use the information revealed during the mediation process to initiate further litigation. For example, one party may record the confessions of the other party during the mediation which may have criminal culpability. With such information revealed in good faith, the devious party can use it as evidence in criminal proceedings. The mediator may also be placed in a forced position to reveal the information obtained during the mediation process. Although the legal system has set policies that are envisioned in the mediation process, the loopholes for a breach of the same are still enormous. It is difficult to make provisions in law to protect crimes that may be confessed to during the mediation process since this would amount to breaking the law. Further on, it is not a requirement on the parties to the negotiation to observe confidentiality during the mediation process Enforceability of the Agreements Can a non binding agreement reached at a negotiation be enforced by a court of law? Mediation is considered a process of mutual participation and any action taken is deemed to in good faith. Therefore when an agreement is reached, it is the personal initiative for the disputants to adhere to it. However, this is only the ideal scenario. A situation may arise whereby one of the parties fails to comply with the agreement. This may arise to bad- faith participation in the entire mediation process or where one party feels that his or her interests were not satisfied fully. The other reason that may cause a party not to honour an agreement might be due to new found information that would have influenced a parties’ position in the mediation. This poses a problem on the effectiveness of solutions that are agreed upon in a mediation process. The bare truth belittles the enforcement of the agreements other than depending on the good will of the disputants. This raises the question on whether the mediation process may be just a waste of time and resources. There have been recommendations that a mediation process should have a final agreement that should be submitted and be admissible as evidence in any legal proceeding to enforce its terms5. While this may seem as a sufficient solution, this approach may create concerns by the participants. The disputants may be inclined to be less outright in the mediation process due to the fear that any information that they reveal may be used against them in future litigation. The long and short of the matter is that the entire mediation process largely depends on the goodwill of the participants to reach an agreement and to enforce it. In situations where a disputant lacks the goodwill to follow through the agreement, there are no mechanisms to enforce compliance. Therefore, the mediation process may not have any positive impact on the affected family. In fact it may be considered a waste of time and resources for the family since is non binding. Hampering of Access to Justice According to HCCLR [11] “All contested issues in every family law case, except matters limited to child support, establishment of paternity, or the existence of adequate cause, shall be submitted to mandatory mediation before proceeding to trial.” This includes cases involving divorce, separation, parenting plans declarations of invalidity, parenting plans and residential plans. The law states clearly that no such matters can be heard in court before a process of mandatory mediation has been conducted. This means that the aggrieved parties have to wait until the mediation process ends before they can take their cases to courts for consideration. In fact, the law stipulates that mediation shall be completed thirty days prior to the commencement of trial. The law is also ambiguous on the duration that the mediation process can legally take. Thus, the aggrieved party is denied a fundamental constitutional right to be heard by a court of law for a duration that is abnormally long. It is inappropriate to delay justice since, as the maxim goes, delayed justice is denied justice. The situation may be grave such as issues of domestic violence and further delays in dispensing justice may place the aggrieved party in unnecessary danger and emotional anguish. According to Carbone, the mandatory mediation process really serves as no solution to the delays in the traditional justice system since it also has the same setback6. Even in the case of mandatory assessment, the process takes long. The assessor has the liberty to set a timeframe for assessment that he deems appropriate and there is an allowance to extend the time limit. As mentioned previously, this is very unacceptable especially in critical situations such as abusive relationships whereby justice may come too late. Some of the tenets of civil justice such as openness, transparency and accountability are simply nonexistent in the mediation process Family Law Act, [1996], c. 27, (Eng.)7. The Victorian Charter recognizes the right to a public hearing and hence it is unfair to delay or infringe upon this right. Thus, the emphasis on mandatory mediation and assessment processes is actually a disservice to the existing systems of litigation which impacts negatively on access to justice. Families are deprived the constitutional right to access justice in resolving issues of concern to them and hence generally, the mandatory mediation processes just serve to hamper the dispensing of justice. The other shortcoming of mandatory mediation is that it leads to more inefficiency in the justice system. Pertinent issues may arise during the mediation process that may become subject to new legal proceedings and thus lengthen the process of laying a case to rest. Also, the mandatory mediation and assessment processes are laden with ambiguities which make their implementation very difficult. For instance, there are no clear guidelines on the duration that the mediation may take and the enforceability of the agreements reached. Also, there are glaring loopholes that may be used by either party keep the process ongoing ad infinitum. A disputant may always apply for a change of mediator after a few meetings on flimsy grounds and this will mean that the mediation has to begin afresh. Recommendations The main focus of this paper has been to analyze the negative impacts of the application of mandatory mediation and assessment in the United Kingdom. One of the remedies to the shortcomings of these processes is the introduction of a requirement to the disputants to attend a mediation orientation session. This will help the courts to decide whether mediation is appropriate to the case. The aggrieved parties should also attempt mediation. The other approach that can help to improve mandatory mediation processes is by devising an appropriate opt out scheme. It is unfair to force an unwilling party to go through an entire mediation process. The law should make clear provisions to allow a party to pull out of a mediation process that they feel is not productive for them. This can help to avoid time wastage and the incurring of unnecessary costs for the disputants8. Enforceability of agreements of the mediation processes should also be given thought. One way of ensuring that the agreements of mediation are adhered to is by ensuring that all the parties participate willingly in the negotiation. Also, is appropriate to bring in the services of a lawyer to advise the disputants on the issues at hand and therefore help them to reach reasonable agreements. It is recommended that some legal guarantee legal enforceability of the agreements without necessarily infringing on the confidentiality of the agreement. Some sensitive and grave cases such domestic violence and rape should be exempted from mandatory mediation. The courts should put in place mechanisms to sieve such cases and allow them to go directly into trial without subjecting them to mediation. There is a need for a complete overhaul of the pre screening tools to evaluate a case sufficiently before it is referred to mediation. Conclusion The subject of Alternative Dispute Resolution is critical in the ongoing process of judicially reforms. Mandatory mediation and assessments have been widely adopted especially in family law to ensure that cases are exhaustively handled before they can be allowed to go trial. However good the intentions for these processes, they do have shortcomings which actually end up undermining family dispute resolution. Mandatory dispute resolution is in itself a paradox since mediation should be voluntary in nature. Also, there are concerns on the enforceability of the agreements reached in these negotiations since they have no legal backing. Client confidentiality and privacy is not guaranteed in the mandatory mediation and assessment since the courts may mandate disclosure of information or either of the parties may use the information revealed as evidence in legal proceedings. Hence, these processes end up undermining the very families that they are meant to help. Bibliogaphy Carbone, M. Enforcing Agreements Made in Mediation. (2nd edn Cavendish, London 2008) Kelly, Z ‘Mandatory Mediation: Implications and Challenges.’ (2009) 69 MLR 119 Garry, H’ Mandatory Mediation as A Temporary Measure’ (2009) Journal of Dispute Resolution. Read More