Consultation Paper on Alternative Dispute Resolution - Law Reform ...

(c) provide information about their impartiality and competence to
both parties prior to the commencement of the procedure.‖
(6) Flexibility
3.210 The mechanisms should aim at preserving the flexibility of the
mediation process. 230
(7) Quality & Transparency of Process
3.211 The 2008 Directive obliges Member States to encourage the training
of mediators and the development of, and adherence to, voluntary codes of
conduct and other effective quality control mechanisms concerning the
provision of mediation services. 231 These mechanisms may include marketbased
solutions (that is non-statutory arrangements) provided that they aim to
preserve the flexibility of the mediation process and the autonomy of the parties
and to ensure that mediation is conducted in an effective, impartial and
competent way.
3.212 The 2008 Directive states that Member States should encourage the
provision of information to the general public on how to contact mediators and
organisations who provide mediation services. They should also encourage
legal practitioners to inform their clients of the possibility of mediation. 232 The
Directive also states that Member States must encourage the initial and further
training of mediators in order to ensure that the mediation is conducted in an
effective, impartial and competent way manner. 233
(8) Enforceability of Mediated Agreements
3.213 The enforceability of outcomes is an important feature of dispute
resolution processes. A decision of a court is legally binding and is enforceable
on the parties to the dispute and enables the final resolution of a dispute.
Decisions made using arbitration are binding on disputants, but most ADR
processes, by contrast, do not produce legally binding outcomes. 234
3.214 At present, parties who mediate in circumstances where they have
not commenced litigation are usually restricted to reducing the terms of any
230 Recital 17 of the 2008 Directive.
231 Article 4(1) of the 2008 Directive.
232 Recital 25 of the 2008 Directive.
233 Article 4(2) of the 2008 Directive.
234 See Thompson ―Enforcing Rights Generated in Court-Connected Mediation -
Tension between the Aspirations of a Private Facilitative Process and the Reality
of Public Adversarial Justice‖ (2003) 19 Ohio St J on Disp Resol 509.
131