Mediation/Conciliation: A Threatened Dispute Resolution System?
affiliation not provided to SSRN
October 6, 2009
The need to evolve a better case management system has made alternative dispute resolution techniques inevitable. The flexibility and the desire to have social justice - justice that best represent the wishes of contracting parties have made alternative dispute resolution technique more appealing to contracting parties. Alternative dispute resolution techniques offer a flight away from the “out of the book,” “justice according to the law” handed down by the regular courts. It gives the parties wide latitude in influencing the kind of justice they get from the process. With it, they can avoid unfavourable laws and procedures they have a chance to appoint the umpire, a luxury they can not get from the normal judicial process- strictly technical matters will be determined by technical people. The common alternative dispute resolution techniques are Arbitration, conciliation and mediation.
While Arbitration has been given a somewhat safe landing by the courts, the same can not really be said for mediation/conciliation. It is acceptable now for the courts to enforce arbitration agreements by ordering a stay of proceedings in deserving cases where a party to an arbitration agreement rushes to court without first resorting to arbitration. Courts readily enforce arbitral awards in fact, arbitration has been fully entrenched in the legal system of most countries. There is abundant literature on its most guiding principles. This can not be said of mediation/conciliation. A mediated settlement is not recognized as an award for the purposes of enforcement. It is still tottering on the edge in the legal space. The daily deployment of mediation clauses or conciliation clauses in contracts has made it imperative for their enforceability visa vis the courts to be determined. They have become attractive because Arbitration is becoming more technical and too formalised like litigation. This paper seeks to examine the legal status of mediation agreements.
Number of Pages in PDF File: 16
Keywords: Mediation, Conciliation, A Threatened Dispute Resolution Process
JEL Classification: K40working papers series
Date posted: October 8, 2009 ; Last revised: March 23, 2012
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