In addressing the question whether a party can be compelled to engage in mediation – the fundamental principle to highlight is that, mediation is voluntary in all its ramifications. The success of any mediation largely relies on the parties’ willingness to voluntarily submit to the process, right from the outset, with a view to settling the dispute, collaboratively. This dictates their attitude towards the mediator and each other, and ultimately feeds into the outcome of the mediation. A case in point involved a commercial dispute that I was scheduled to mediate, which settled prior to the day of the mediation. Both parties showed a genuine interest in working out a mutual settlement and putting an end to a dispute that had plagued their relationship and sadly brought their small-scale exportation business to a halt.
On the one hand, you may say, from a mediator’s perspective, that a somewhat ‘pre-mature’ settlement is bad for business. But on the other, it goes to demonstrate the power of effective communication as an element of mediation, or simply, the ability of the mediator in facilitating effective communication. Please be constructive with your criticism, if I went with the latter.
To return back to the subject of engaging a party in mediation, there is a long standing and rather animated debate as to whether compulsory mediation should be introduced in the UK, as it scarcely exists in some other jurisdictions. The implication is that the option of whether or not to mediate, is pushed beyond the reach of the parties, and so the question of whether or not to accept an offer to mediate, becomes redundant.
I hesitate to explore in any detail the argument for and against compulsory mediation on this occasion, but suffice to say that compulsory mediation may give rise to a culture of box ticking and adversely affect the outcome of most processes. It would, in my opinion, undesirably alter the very foundation on which the concept of mediation is built and may lose its stance as an alternative to court, to becoming a rebound of the court.
So then, can you compel a party to accept your offer to mediate? As it stands in the UK and in most other jurisdictions around the world, the answer is no. Neither a party nor the court can do so. Although, with regards to family law matters, applicants for a court order relating to the children, finances and assets, are expected to have considered mediation, by way of a Mediation Information Assessment Meeting (MIAM), before making an application to the court. Respondents are also expected to attend such MIAM.
However, in civil and commercial cases, you can try to encourage or persuade the other party to engage in mediation, and where they unreasonably refuse to accept your offer, they run the risk of facing cost consequences, as we have seen in PGF II SA v OMFS Company 1 Limited.
It is usually the case that parties who make the initial contact with a mediator or mediation provider are usually concerned that the other party may not want to mediate. Some parties may find the idea of having a peaceful and constructive dialogue with the other side inconceivable, due to the existing high tensions.
The key is in the quality of information presented to the parties during the pre-mediation stage, and the ability of the mediator or the mediation provider to efficiently address any concerns the parties may have. It involves educating the parties about mediation and helping them understand the process and benefits as fully as possible. As far as the benefits of mediation go, sometimes practicality trumps cost.
Some parties may decide to use mediation or accept an offer to mediate, not just because of the cost benefit, but mainly because they can appreciate just how ingenious and flexible they can be in devising a solution that works best for them, in what may be a really complex case.
If you are considering using mediation, your chances of engaging the other party lie in part with the experience, and sometimes personality of the mediator, in winning the other side over.
Director & Founder, London ADR