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29.5
The specific proposals
(a)
Proposal 68: Encouraging purely voluntary mediation
This proposal was uncontroversial. It involves little more than maintaining the status
quo, proposing that the court should take steps to encourage the parties to undertake
purely voluntary mediation by, for instance, providing better information on available
facilities and requiring the parties to indicate whether they have considered ADR. No
element of compulsion to mediate (whether by direction of the court or by any
threatened sanction) is envisaged here.
The take-up rate for purely voluntary mediations is, however, generally very low and
would probably remain insignificant even if greater efforts were made to disseminate
information and encourage its use. One reason for this is the well-known reluctance of
parties to initiate settlement overtures for fear of their actions being construed as a
sign of weakness. Accordingly, if Proposal 68 were the only proposal on mediation
adopted, it would have little impact on the civil justice system. The Working Party
believes that mediation merits a greater role. It is in favour of adopting Proposal 68 as
part of an overall effort to educate all concerned about using mediation, in conjunction
with other measures designed to offer mediation as an effective adjunct to traditional
court proceedings.
Recommendation 138: Proposal 68 (for the court to provide litigants with
better information and support with a view to encouraging greater use of purely
voluntary mediation) should be adopted in conjunction with other appropriate
measures to promote court-related mediation.
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