Monday, 5 March 2012

Mediation's Achilles heel

I’m a big fan of mediation. It works, far more often than not.

All mediation providers and others with any kind of interest in promoting the process will tell you that. There’s no catch. I’ve been involved in it many times now and almost always seen a resolution on the day, sometimes in the weeks that follow.

Little wonder that those presently  looking to excuse the, er, “rationalisation” of court services and attacks on funding should point to mediation as the panacea for ordinary citizens who will in practice be deprived of what has long been identified as a fundamental right, that of access to justice.

At the risk of seeming to put the cart first, the problem is not in making the idiomatic horse drink but in leading it to the water.

About 18 months ago I had the privilege of attending a conference that examined and debated inspirational projects in the field of student peer mediation and affiliated work within gang cultures. Some astonishing results had been achieved.

But in answer to my unforgiving enquiry, the response was that - yes – some form of compulsion, greater threat, downside, “or else”, is usually needed to bring at least one of the (would-be) combatants to the table.

So it is in my day job. What persuades parties to litigation to mediate is the prospect of a more expensive, more arbitrary, less flexible and altogether scarier process as the only alternative to feeble capitulation.

Take away the prospect of at least one if not both parties pursuing a judicial resolution and where is the impetus to mediate?

That, quite simply, is the Achilles heel.

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