From a technical point of view mediation is a voluntary way of resolving disputes where a trained mediator helps parties of relatively equal bargaining positions to resolve disputes about legal issues.
From the same technical point of view mediation is good, it’s a breath of fresh air for the legal system, is one of the methods of healing a tired legal circuit.
We are close to Christmas so it feels appropriate to say that mandatory mediation is for judges and prosecutors like a big present under the tree on Christmas morning. I for once can almost see tones and tones of legal disputes disappearing from my office.
But from experience what seems to good to be true it probably is. So the topic of our discussion today is less whether or not mediation should be mandatory and more whether or not this decision is a suicide rather than a life line.
Before you criticize what I just said and what I am about to argue let’s think a little about what this procedure is all about.
Coming back to the legal definition, mediation is a voluntary way to resolve disputes …as in “it cannot be mandatory”. Oh well, you may try to make it mandatory but this idea is sure to implode because, let’s face it, making civilized deals implies that both parties want to act civilized. From my point of view mediation was designed for those who have a problem, they cannot solve it in private and have the desire of finding a solution. This is why mediation is more about the free will of the individuals and less about what the legislator imposes. Transforming mediation in a mandatory procedure before going to court will not benefit anyone and instead of having a relaxed legal system we’ll end up not only with overcrowded courts but with overcrowded mediators as well.
Let’s try to imagine the “mandatory mediation” era: all the parties that now suffocate the courts and prosecution offices will flow into the mediators’ office, and this will happen in spite of whether or not they know what this procedure is, how it works, what they can achieve. At first it will be a great thing and everybody will enjoy the modern era but I predict that shortly some little system bugs will appear: mediators will be overwhelmed by the number of people that have real or imaginary legal problems, the procedure will take a substantial amount of time, crowded and tired mediators will be inefficient and the system is blocked again. Moreover those who go just because they have to will end up in court anyway because you may impose going through a procedure but you can not impose remaining there. So in the end mandatory mediation will just prolong the first court hearing as it will only work for those who would have chose mediation even if it was optional and maybe for 1% of those who were undecided. For this tiny group of people we distort the very essence of the institution, we create a formal step in solving disputes and we risk discrediting the legal concept in itself.
The other part of the definition tells us that mediation needs trained mediators. Trained in what? How? By whom? I don’t know the answers but does a mediator needs special skills, does he need social abilities, does he have to know the legal system? Do we need to select the mediators more attentively? A mandatory procedure needs to be efficient but can it be efficient with untrained persons? Because let’s face the cruel reality from tv stars to my neighbour anybody that pays the price of some courses can become a mediator. And maybe this is enough if the parties choose freely to go to that person, and maybe it is enough if this procedure can deal with a number of insignificant legal disputes but surely it is not enough if the State chooses to oblige its citizens to undergo this procedure and surely it is not enough if this procedure has costs that the parties have to pay against their free will.
But costs and crowded mediators and untrained personnel is not the biggest problem. The role of the mediator is to help the parties reach an agreement. The mediator is not legal aid, it’s role is not to give legal assistance, he only mediates the two colliding interests. The prerogatives given to the mediator imply that parties in disputes know their rights, that the legal issue in itself is not really in question in terms of the merits or legal nature in other words mediation needs educated or at least cautious individuals. More than 70% of those who come before a judge don’t know the minimum basis of our legal system and they are not very keen on gaining knowledge in this field. The mediator has to help those parties to solve their problem but he cannot determine for them what the problem is.
Institutions are made for the society of the moment, they have to be created in a way that embraces reality and ambitious plans have to be carefully put into practice with patience and responsibility. Mediation may be the solution for the legal system but I strongly believe that it is not a blitzkrieg solution for our society now. So until we are all ready for mandatory peace and civilized solutions let’s open the box little by little.
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