Compulsory mediation: Civil justice, Human rights and proportionality

Sidoli del Ceno, Julian (2014) Compulsory mediation: Civil justice, Human rights and proportionality. International Journal of Law in the Built Environment, 6 (3). pp. 286-299. ISSN 17561450 (ISSN)

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Abstract

Purpose – This purpose of this paper is to critically examine jurisprudentially the current judicial and academic scepticism that exists in some quarters with regard to compulsory mediation primarily from the context of England and Wales. In doing so, it seeks to respond to well-articulated and established concerns with regard to any compulsion in mediation as outlined by Hazel Genn among others as well as some senior members of the judiciary.

Design/methodology/approach – This paper seeks to critically examine jurisprudentially the current judicial and academic scepticism that exists in some quarters with regard to compulsory mediation primarily from the context of England and Wales. In doing so, it seeks to respond to well-articulated and established concerns with regard to any compulsion in mediation as outlined by Hazel Genn among others as well as some senior members of the judiciary.

Findings – This paper argues that the worries concerning compulsory mediation are unnecessary as they are based on a narrow reading of Article 6 rights, one not shared by many European lawyers, in particular the view taken by them with regards to proportionality. It further argues that compulsory mediation can be an appropriate, proportionate method of dispute resolution in some cases recognising that mediation is not a bar per se to subsequent litigation.

Originality/value – Mediation is an important topic in contemporary law. The theoretical and jurisprudential aspects of mediation have as yet been underdeveloped. This paper is a contribution to this developing debate. © Emerald Group Publishing Limited.

Item Type: Article
Uncontrolled Keywords: Article 6 rights, Civil justice, Compulsory mediation, Human rights, Judiciary, Proportionality
Subjects: M100 Law by area
Divisions: UoA Collections > UoA20: Law
Faculty of Business, Law and Social Sciences > School of Law
Depositing User: Yasser Nawaz
Date Deposited: 10 Feb 2017 12:18
Last Modified: 10 Feb 2017 12:18
URI: http://www.open-access.bcu.ac.uk/id/eprint/1943

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