Rights, Responsibilities and Mandatory Mediation

Rights, Responsibilities and Mandatory Mediation

By Daniel Kershen, CEDR Foundation Project Coordinator

In the aftermath of the London riots this month, several political discussions centred around the development of a culture in the UK driven by rights but with very little recognition of responsibilities.  Whether this is the case, there remains some uncertainty over what our human rights are, how to balance conflicting rights and indeed who governs them.

This being so, the Ministry of Justice has set up a Commission into a UK Bill of Rights, chaired by Sir Leigh Lewis KCB.  This commission has been set up to;

“…investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties.”

Some people have said that mandatory mediation contravenes human rights.  CEDR do not believe this to be the case.  Fundamentally in mandatory mediation one is not being forced to settle their dispute, but rather obliged to attend the mediation session, as one has other procedural obligations within court processes.  Once you have fulfilled this obligation there is no requirement to find a resolution.  Indeed whilst CEDR believes that mediation should be at heart a voluntary process, in some countries such as the USA, court ordered mediation has been shown to be successful, and the courts in England have encouraged robust directions for parties to mediate, if not compulsion.

Mediation puts the responsibility for finding a solution into the disputant’s hands, giving them back the power to resolve it themselves, with the assistance of an impartial facilitator.

Article 6.1 of the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms states; “…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Mandatory mediation does not contravene human rights, the parties may not like it, but it fundamentally does not function to deny the party this right to a public hearing.  What a mandatory mediation process does is briefly delay the route to trial whilst offering those involved the opportunity to resolve the dispute using a vehicle that is faster, cheaper to run and gives the drivers more control over how the destination is reached.

It is the parties’ right not to settle the matter if they believe that mediation is not the best or most appropriate tool for their situation, or if they are not satisfied with the prospective settlement terms.  On the other hand it is arguably the responsibility of those involved in the dispute to attempt to resolve it when given the opportunity, through the most appropriate and potentially effective procedure available.  If the judiciary believe mediation will give the disputants this opportunity and it is deemed appropriate, then being offered this chance to take responsibility for the settlement landscape could be deemed a privilege.

However in a culture of instant answers where solutions to problems are often prescribed, it is no surprise that a culture of blame and externalisation harbours an emphasis on civil rights without a recognition, let alone understanding of civil responsibilities, and the balance between them.

Whilst CEDR does not condone it, perhaps mandatory mediation has something to teach those who espouse a great deal about their rights and yet seem to understand very little about their responsibility.

To find out more about the commission and to share your views, please follow this link to the Ministry of Justice Commission page.

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