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(e)
Proposal 64: Mediation as a condition for proceeding with the action
Proposal 64 involves the court in the exercise of a comparatively high degree of
compulsion, imposing on the parties a positive duty to engage in mediation,
preventing them from proceeding with their action in the meantime. Such an approach
would plainly attract many of the objections identified above, especially the
voluntariness objection. It is also likely to raise doubts on the basis respectively of the
duty to entertain litigation, the lack of infrastructure and the additional costs points.
In these circumstances, it is the Working Party's view that Proposal 64 should not be
adopted, at least initially. It may be that after mediators, judges, lawyers and others
involved have gained experience and expertise, making mediation a well-accepted
option within our civil justice system, rules could be adopted to empower the courts to
make more specific and demanding mediation orders.
Recommendation 142: Proposal 64 (for giving the court power to order the
parties to engage in mediation) should not be adopted at present.
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