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

Mediation offers the parties an opportunity to take control over their
future arrangements, instead of leaving it in the hands of professionals;
The costs of mediation may be less than the costs of a full hearing and
disputes can be resolved more quickly than through the court process;
Arrangements reached through agreement are more likely to be
adhered to than solutions imposed by a court. This is especially so in
arrangements relating to child custody and access; and
Mediation is private. Mediation usually limits outside intervention (with
the exception of legal advisers) to one professional. 51
5.42 In terms of disadvantages, the Commission noted that:
The process of mediation with its emphasis on the voluntary agreement
of the parties tends to mask social and economic imbalance between
the parties. The economically dependent spouse, usually the wife, is
generally in a weaker contracting position than her partner;
Mediation designates agreement between the parties as its aim, and it
operates without the protection of legal norms and principles;
Mediation removes control from the parties, even where its intention is
to give them greater control. This criticism is associated in particular
with schemes where the mediator actively encourages a particular form
of settlement rather than letting the parties define their own terms;
Instead of deregulating proceedings, mediation [this is more akin to the
Commission‘s definition of conciliation 52 ] actually extends regulation, in
particular under in-court schemes where experience shows that the
professionals may tend to dominate and the proceedings become more
adjudicative than conciliatory in nature. Mediation may also extend
regulation in that simpler, alternative means of settlement might have
been used if mediation were not available, such as settlement through
solicitors; and
The cost of mediation may be significant, and it is not established that it
is in all cases less than the cost of court proceedings. 53
51 Law Reform Commission <strong>Consultation</strong> <strong>Paper</strong> on Family Courts (March 1994) at
32.
52 See Chapter 2, above at 2.129.
53 Law Reform Commission <strong>Consultation</strong> <strong>Paper</strong> on Family Courts (March 1994) at
32.
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