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While preserving the consensual core of a mediation, a court-annexed scheme may
involve rules which make engaging in the mediation process procedurally
"mandatory" in varying degrees.
(a)
The court may be given power to order the parties to appoint a mediator (with
an accrediting authority appointing one in default) and to proceed with the
mediation until it is terminated (usually either by settlement, by the mediator
certifying that it has not succeeded or by either party withdrawing).
(b)
Or the court may have power to require the parties to appoint a mediator and to
engage to some stated degree in the mediation process.
(c)
Or the court might only have power to recommend mediation and to impose
costs sanctions if no attempt at mediation occurs.
The point for present purposes is that, the premise of the voluntariness objection
cannot be accepted. Procedural requirements imposed by rules of court such as those
mentioned above do not deprive mediation of its essentially voluntary and consensual
character and do not make it unworkable.
Notes
In England and Wales, for instance, the Commercial Court Guide contains a draft ADR order
requiring an ADR neutral to be appointed and directing the parties "to take such serious steps as they
may be advised to resolve their disputes by ADR procedures before the neutral individual or panel so
chosen by no later than [a specified date]."
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