Compulsory mediation: civil justice, human rights and proportionality

AuthorJulian Sidoli del Ceno
PositionBirmingham School of the Built Environment, Birmingham City University, Birmingham, UK
Pages286-299
Compulsory mediation: civil
justice, human rights and
proportionality
Julian Sidoli del Ceno
Birmingham School of the Built Environment,
Birmingham City University, Birmingham, UK
Abstract
Purpose – This purpose of this paper is to critically examine jurisprudentially the current judicial and
academic scepticism that exists in some quarters with regard to compulsory mediation primarily from
the context of England and Wales. In doing so, it seeks to respond to well-articulated and established
concerns with regard to any compulsion in mediation as outlined by Hazel Genn among others as well
as some senior members of the judiciary.
Design/methodology/approach This paper seeks to critically examine jurisprudentially the
current judicial and academic scepticism that exists in some quarters with regard to compulsory
mediation primarily from the context of England and Wales. In doing so, it seeks to respond to
well-articulated and established concerns with regard to any compulsion in mediation as outlined by
Hazel Genn among others as well as some senior members of the judiciary.
Findings – This paper argues that the worries concerning compulsory mediation are unnecessary as
they are based on a narrow reading of Article 6 rights, one not shared by many European lawyers, in
particular the view taken by them with regards to proportionality. It further argues that compulsory
mediation can be an appropriate, proportionate method of dispute resolution in some cases recognising
that mediation is not a bar per se to subsequent litigation.
Originality/value Mediation is an important topic in contemporary law. The theoretical and
jurisprudential aspects of mediation have as yet been underdeveloped. This paper is a contribution to
this developing debate.
Keywords Human rights, Article 6 rights, Civil justice, Compulsory mediation, Judiciary,
Proportionality
Paper type Conceptual paper
Introduction
Mediation is now a feature on the dispute resolution landscape – whether it is a welcome
feature, however, appears to depend on who you choose to listen to. Mediation is a form
of alternative dispute resolution (ADR) that seeks to reach an agreed settlement through
the use of a mediator who acts as a facilitator to the parties. The process provides a
An earlier draft of this paper won the “Best Legal Paper” award at the RICS COBRA research
conference in New Delhi, 10-12 September 2013. The author would like to thank the editor and the
anonymous reviewers for their helpful and insightful comments that have improved this paper
considerably. I would also like to thank Sophie Boyron and Gavin Byrne, both of Birmingham
Law School, University of Birmingham, who commented on earlier drafts of this paper. Any errors
or omissions remain the author’s. Thanks are also offered to Ian McDonald, Research Ofcer at
Birmingham City University, for kindly proofreading the nal draft.
The current issue and full text archive of this journal is available at
www.emeraldinsight.com/1756-1450.htm
IJLBE
6,3
286
International Journal of Law in the
Built Environment
Vol. 6 No. 3, 2014
pp. 286-299
© Emerald Group Publishing Limited
1756-1450
DOI 10.1108/IJLBE-09-2013-0036

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