Mandatory Mediation: Opportunities and Challenges

Abstract

This article analyses one of the variations of classic mediation,64 which is mandatory mediation. In foreign countries mandatory mediation is often used as a tool to encourage the use of mediation and to popularize this method of alternative civil dispute resolution. Started in 2005, mediation faces difficulties in Lithuania. Thus, making mediation mandatory at least in certain categories of disputes could give new impetus to the development of mediation in Lithuania. Therefore, the article deals with the concept of mandatory mediation, analyses experience of foreign countries in the field of mandatory mediation, deals with practical problems while implementing mandatory mediation and presents a review of arguments for and against mandatory mediation. On the basis of a study performed, the author of the article submits proposals for the introduction of mandatory mediation in the Lithuanian legal system.
In this article mandatory mediation is defined as a form of mediation where the parties are directed to use mediation by judge or by law. Mandatory mediation can also be imposed on the parties by procedural and economic sanctions against parties for the unjustified refusal to use mediation.
In all cases, the main condition for the application of mandatory mediation is the right of the parties to the dispute to go to court. Under this condition, mandatory mediation for its expected social and economic benefits is not considered to be an obstacle to access justice.
The practice of foreign countries that implemented mandatory mediation shows that drastic imposition of mandatory mediation naturally induces rejection. Thus, consistent, systematic, based on the results of the interim analysis of the gradual introduction of mandatory mediation, starting with certain categories of disputes particularly susceptible to the effects of mediation is necessary.
The author of the article proposes to promote mediation in Lithuania by introducing mandatory mediation for at least certain categories of disputes. The introduction of mandatory mediation in Lithuania could be started from the family disputes including interests of children. At a later stage it is possible to decide on the feasibility of application of the mandatory mediation for other categories of disputes, as well (e.g., labour, small sum property disputes, disputes between relatives and neighbours, etc.).
In order to encourage not only the parties to use mediation, but also judges to direct parties to mediation, it would be appropriate to introduce mandatory mediation by the law (the Civil Procedure Code of the Republic of Lithuania) that would have an exemption provision to allow a party to petition the court for good cause to be exempt from the referral to mediation.