Mediation - Difficulties Flashcards
Intro
Mediation cost-efficient ADR (alternative dispute resolution) in civil disputes especially
Provides parties opportunity to end conflict out with the courts
Mediation can reduce backlog within cases but still has some barriers
This tends to undermine main objectives of civil justice such as access to justice and power imbalance between parties
This essay will explore these difficulties and how they impact the effectiveness of civil justice
Power Imbalance - Point
A major difficulty found in mediation is the tendency for power imbalances between parties
Prevalent in disputes regarding differing levels of expertise or a history of abusive behaviour
Power Imbalance - Impact on Justice/Fairness
If one party has more power such as an employer vs employee, this can result in an unfair outcome
The party with more power, in this case the employer, could pressure the less powerful party into agreeing to something which doesn’t meet their needs
Power Imbalance - Access to Justice
It can also deter individuals from considering mediation at all
Those with less money than the party they’re facing may not think it’s a viable option as they cannot effectively advocate for themselves
Power Imbalance - Undermining Voluntary Participation
Mediation is relied upon voluntary participation of all parties involved meaning if one feels manipulated, this may undermine the entire process
Power Imbalance - Solutions
In order to mitigate power imbalances, mediators must be trained in order to address these issues
Could involve caucuses
- Parties separately speaking with mediator
Offering support services such as social workers
- Ensures parties understand their rights
Lack of Enforceability - Point
Mediation may result in mutual outcomes, agreements are not binding unless approved by court
This may present difficulties if one party refuses to comply with terms of mediated settlement
Lack of Enforceability - Legal Certainty
This lack of enforceability can lead to further disputes or need for litigation in order to enforce the agreement
Takes away from the goal of solving disputes out with courts
Lack of Enforceability - Solutions
Certain jurisdictions can make agreements binding like making consent orders, enforceable same way as court judgements
Mediation agreements could also be filed as contracts, ensures parties understand consequences of non-compliance
Lack of Enforceability - Public Trust
Parties believe mediation is ineffective as agreements are not always enforceable meaning they’re less likely to engage with it
Reduces effectiveness of ADR systems
Emotional & Psychological Barriers - Point
Mediation is encouraged through direct communication between parties, often rehash hurtful emotional issues in cases like divorce
Emotional & Psychological Barriers - Resolution Quality
If these barriers aren’t addressed parties may not recognise beneficial solutions leading to unsustainable agreements
Emotional & Psychological Barriers - Access to Justice
If one party is significantly more emotional regarding the case, it may reduce the integrity of the mediation process especially in trauma cases
Emotionally resilient party will dominate
Emotional & Psychological Barriers - Solutions
Mediators play significant role in acknowledging emotions whilst not over powering the resolution process
Receiving some therapy before beginning mediation process in particularly emotional cases may benefit parties in solving disputes
Limited Scope of Mediation - Point
Mediation best suits cases with an aspect of flexibility
If cases require difficult legal questions mediation may not be best
