Mediation saw exponential growth in the past 30 years. It has emerged as an effective way of dispute resolution. It contains different stories by various storytellers across the globe. In this article, we will mainly cover four such stories namely
- The alternate dispute resolution story
- The regulation story
- The professionalization story
- The international story
The ADR Story
Storytellers define it as a story of how legal systems evolved from hectic procedures involving non-affordability over legislation and a lot of time. In this story, mediation serves as an alternative to legal processes. It serves as a more efficient way to access justice and dispute resolution. According to critics of this story, mediation is a quick and cheap method to deal with minor issues. This is to offer courts time to deal with the most significant matters. ADR Story offers quantitative benefits at the same time raising concerns for the quality of civil justice. However, it also concerns the conceptual integrity of mediation. Hence it is necessary to maintain a quick, cheap way of delivering effective justice and integrity of mediation.
In addition to the cost and time friendliness of ADR Story, it offers privacy, conflict ownership, and transformational opportunities to the parties. Hence mediation provides a shift of responsibility from courts to the parties themselves. Here the term party autonomy means that parties can make their choices regarding the procedures and risk management. Parties act as masters of the outcome of the dispute. In Australia, party autonomy serves as a guiding and overriding feature of the mediation. In Hong Kong, party autonomy is an integral part, but the main focus is on the delivery of service and the theme of justice.
ADR story offers Transformational opportunities as an alternative. Relative transformation deals with the equation of parties with each other. In Hong Kong, the context of face-saving and dignity is much prevalent. In England and Australia, relational transformation is concerned with the following:
- Firstly deepening of conversation between the parties
- Secondly empowering each other.
- Thirdly educating each other about the issues
- Fourthly relating each other constructively
However, there is only limited data available about the quantitative and qualitative benefits of mediation. Therefore it isn’t easy to make an informed comment on aspects of mediation in Australia. There is a need for empirical research in aspects of mediation. The same is the case with Hong Kong and England.
There have been many attempts to change the term alternative to appropriate or amicable. In 1990 in Australia, there was an initiative to shift ADR to PDR (Primary Dispute Resolution).
The Regulation Story
This story concerns much about the relationship between the mediation and legal system. Under the regulation, story mediation is regulated in both form and content. However, this story covers the regulation of form in a much broader sense. In the regulation of content, different aspects of mediation are regulated. There are four types of mediation regulation:
- Initiation of mediation
- Process of mediation and the procedures followed
- Measuring of standard and quality
- Regulation of rights and obligations of the parties
In Australia, court staff conducts court-annexed mediation. Judges act as mediators, and the process remains confidential. Here the courts can refer the parties to conciliation even if none of the parties consent to do so. A report titled The Resolve to Resolve recognizes legislative sanctions are important for mediation regulation. But these regulations are not sufficient. There is a long way to come.
In England, reforms hope to promote a settlement before litigation. The overall purpose of the rules is to imbibe a sense of affordable and predictable nature of litigation. Even after these reforms, the mediation has not seen exponential growth in England. The cost of mediation and ADR is high in England and Wales.
In Hong Kong, the Hong Kong mediation Report sets out specific recommendations for regulation in the future. The most important of these recommendations is to enact mediation legislation in a stand-alone mediation ordinance. Another recommendation states that the said legislation should not alter the flexibility of mediation.
Further, the regulation story examines other regulatory issues. For instance, it looks at the constitutional ability, duty of lawyers and participants, etc. These issues ensure that parties practice mediation in good faith.
The Professionalization Story
Contemporary mediation is quite different from traditional mediation. The most crucial characteristic is to professionalize the practice. There exist accreditation schemes and identification of people who are permitted to practice mediation.
In England and Hong Kong, there are no legislations for the accreditation of mediators. There are no restrictions on non-lawyers to become mediators. Many countries believe that this accreditation must be balanced with flexibility, diversity, and innovation. Innovation is the critical element that mediation promises.
In Australian family mediation, there is federal legislation that governs the accreditation. Under these legislations, there are very high standards set for becoming mediators. For instance, only trained professionals can become family dispute practitioners.
In England, the Civil Mediation Council (CMC) has proposed a mediator registration scheme. It is an independent body. The primary purpose of CMC is to promote civil and commercial mediation in the country. According to the registration scheme, it is open to mediators both in England and abroad. There is strict adherence to minimum qualifications, experience, and training to get registration as a mediator. The registered mediators can use the CMC logo as it gives assurance to the general public. Critics consider these standards as too low to assure quality.
In Hong Kong, the Working Group on Mediation deliberated long on the need for setting professional standards. There were many views in favor as well as against it. Conclusively they reached a compromise. In the Mediation Report, there was a recommendation to the courts to refer matters of the national code of conduct to arbitration. It does not discard mediation as unimportant. But they pondered that the issue was raised too early to talk about. Hence in Hong Kong, there are no national accreditation standards.
The International Story
In this story, mediation is viewed as a cross-country and a cross-culture phenomenon. There has been an exponential growth in international mediation services. Also, it covers the issue of transportation of ethics from the first world to the third world. In the late 1990s, there was a beginning of cross borders dispute resolution through mediation. Many international commercial arbitration institutions flourished during this period. Mediation Services Alliance(MEDAL) is the first transatlantic organization founded in 2005. The World Intellectual Property Organisation(WIPO) offers international mediation services in the field of intellectual disputes.
The United Nations Commission on International Trade Law (UNCITRAL) published a model law on International Commercial Conciliation in 2002. This was a significant step in international regulatory instruments. It influenced policy discussions in various countries, including Hong Kong, Australia, and England. The European Directive on Mediation in Civil and Commercial Disputes (2004) requires regulation of aspects of mediation. It influences its regional focus.
To regulate family disputes, there are umpteen cross-border regulatory institutions. For instance, three relevant conventions were released in The Hague Conference on Private International law. The Hague Child Protection Convention (1996) promotes the use of mediation regarding parental responsibility and measures for child protection. The Hague Adult Protection Convention promotes empowerment and protection of vulnerable adults. Lastly the Hague Child Abduction Convention makes provision for mediation.
Paradoxically there are many risks associated with international harmonization due to mediation. One of these includes the impact on their ability to translate during cross-border and cross-culture mediation.
It is quite necessary to remain vigilant while deciding the future of mediation, reflecting upon the scenario in these three countries. Mediation has decided a long journey since its inception. These four stories across the globe have tried to cover all the positive and negative aspects of mediation. Despite criticisms, mediation saw rampant growth across the world.
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