orders which reflect the approach to mediation, and the more precedent which is seen, then the more prescriptive that can be seen to be. The European Union in 2008 issued a directive with the general objective of promoting mediation in cross-border commercial disputes. Italy elected for compulsory mediation as have Canada, Singapore, Australia and parts of the US. The general finding is that there follows a high percentage of settled disputes where parties are compelled to mediate. Mandatory mediation is evident in the UK. There are clear pre-action protocols which parties in dispute are expected to follow. The family court requires parties to attend a Mediation Information and Assessment meeting prior to court proceedings. In employment cases, a party cannot secure a tribunal without early ACAS reconciliation. There is no doubt that the trend towards stronger encouragement and perhaps compulsory mediation will accelerate. The experience in jurisdictions which have adopted full compulsory requirements is mixed. Yes, the number of cases settling has been impressive. However, not every case is appropriate for mediation and many lawyers argue that there is a fundamental denial of the right to access to justice in court which is masked by the impressive settlement results. In Canada there have been reports of mandatory mediation expediting litigation with narrowed issues, particularly in complex cases and this is understandably beneficial. However, at the same time the stated quality of settlement – particularly in simpler, straightforward cases – was found to be lacking, particularly where a power imbalance was evident. A trial has all of the safeguards of formality, advocacy and witness statements, whereas in mediation the skill, training and trusted capability of the mediator is vital to high quality and durable success for all parties. In your view, how could the use of mediation in the UK be enhanced without losing the benefits it has to offer? In the UK there are stronger calls for mediation in order to reduce cost, time and stress in disputes which will lead to litigation. There are pluses and minuses of EXPERT INSIGHT 69 It has been shown that across all conflicts, mediation can be 80% effective in resolving matters at first attempt. vii. Mediation is confidential and, generally, court proceedings are not. If mediation becomes a sequential part of the route to litigation, then matters of confidentiality and prejudice-free discussion must be addressed. viii. Can compulsory mediation align itself with Article 6 of the European Convention on Human Rights and the right to a fair trial? Rupert Jackson was clear on compulsory mediation: “Mediation should be encouraged but not made mandatory”. It should be considered as a parallel to the litigation process and not a sequential step towards court. Other jurisdictions have already adopted a compulsory approach to mediation. What have been the observed effects of this? It could be argued that in some areas of UK law there is already compulsory mediation. Courts have wide-ranging powers to award settlements and cost
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