Shahla Ali on Conciliation Beyond the Courts – Aspirations and Limits of Mandated and Voluntary Court Mediation Programmes From a Multi-Jurisdictional Perspective (CPLJ)

"Conciliation Beyond the Courts – Aspirations and Limits of Mandated and Voluntary Court Mediation Programmes From a Multi-Jurisdictional Perspective"

Shahla Ali

in Comparative Procedural Law and Justice, edited by B Hess,M Woo,L Cadiet,S Menétrey, and E Vallines García (CPLJ Part XV Chapter 2)

Published online: November 2024

Introduction:

As judicial systems advance, evolving conceptions of justice are reflected in varying emphasis on the role, place and practice of conciliation beyond civil courts. How such programmes provide opportunities for party-directed reconciliation on the one hand while ensuring access to formal legal channels on the other remains an area of continued enquiry. The question this section seeks to explore is what drives the development of a nation’s particular approach to its court mediation system, whether voluntary or mandatory. How important is party choice in the success of court-connected mediation programmes? Given that ‘public means available for financing dispute resolution are not unlimited,’ a balancing of individual process choices and social efficiency requires careful investigation. Variation among such programmes in diverse societies reflects, to a large extent, distinct approaches to individual and collective responsibility for the financial, social and temporal resources required for resolution. In some jurisdictions, the design of court mediation structures may align with a view of conciliation as the mainstream, normatively preferable, rather than an ‘alternative’ approach to the resolution of disputes. In others, individual rights, protections, and choices are prioritized, with parties given the option to decide whether to engage in conciliation processes. The first part of this paper explores the motivations behind varying court mediation programme designs, voluntary or mandated, and the relative benefits, challenges and implications of such design choices. Examples of jurisdictions in which mediation has long been considered mainstream are explored to understand continuities in court-connected mediation programmes. This is followed by a discussion of comparative survey findings examining the impact of judicial mediation structure (mandated or voluntary) on perceptions of justice, efficiency and confidence in courts in ten jurisdictions.

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