Mandatory Mediation - Advantages and Disadvantages
It is useful to consider the various arguments for and against mandatory mediation:
Satisfaction - 'Everyone is a winner' - mediation offers remedies which are not available to the courts in a litigation process. Therefore, usually mediation results in parties getting something that they want; there is not an outright winner or loser.
Fewer cases in the court - mediation prevents a backlog of cases, and this has been cited as one of the main reasons for the system in Italy. This reduces costs for the parties in dispute as well as costs to the public purse.
Access to Justice - mediation is more affordable; therefore even if a party lacks financial means it can still resolve its dispute. Mediation is much cheaper than litigation, and is also cheaper than some of the other ADR procedures. The cost of mediation will depend on how complex the dispute is, and how many people are involved in the process.
Quicker - mediation forces parties to communicate and negotiate rather than take part in an adversarial process. Mediation can result in parties realising that the issues in dispute are actually quite narrow.
Future relationship maintained - parties are more likely to maintain a positive relationship after attending mediation.
Dissatisfaction - 'Everyone is a loser' - in order for mediation to be successful parties have to be willing to compromise, and they may not wish to concede anything. Mandatory mediation may therefore put pressure on parties to concede issues and leave them with a feeling of dissatisfaction with the legal system.
Fewer cases in the courts - this could result in a lack of precedent, due to mediation being a confidential process where cases are not reported.
Access to Justice - disputants have a right to litigate, and therefore mandatory mediation would simply prolong the process and add another layer of cost. This may have adverse implications for access to justice.