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Compulsory mediation: civil justice, human rights and proportionality

Julian Sidoli del Ceno (Birmingham School of the Built Environment, Birmingham City University, Birmingham, UK)

International Journal of Law in the Built Environment

ISSN: 1756-1450

Article publication date: 7 October 2014

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Abstract

Purpose

This purpose of this paper is to critically examine jurisprudentially the current judicial and academic scepticism that exists in some quarters with regard to compulsory mediation primarily from the context of England and Wales. In doing so, it seeks to respond to well-articulated and established concerns with regard to any compulsion in mediation as outlined by Hazel Genn among others as well as some senior members of the judiciary.

Design/methodology/approach

This paper seeks to critically examine jurisprudentially the current judicial and academic scepticism that exists in some quarters with regard to compulsory mediation primarily from the context of England and Wales. In doing so, it seeks to respond to well-articulated and established concerns with regard to any compulsion in mediation as outlined by Hazel Genn among others as well as some senior members of the judiciary.

Findings

This paper argues that the worries concerning compulsory mediation are unnecessary as they are based on a narrow reading of Article 6 rights, one not shared by many European lawyers, in particular the view taken by them with regards to proportionality. It further argues that compulsory mediation can be an appropriate, proportionate method of dispute resolution in some cases recognising that mediation is not a bar per se to subsequent litigation.

Originality/value

Mediation is an important topic in contemporary law. The theoretical and jurisprudential aspects of mediation have as yet been underdeveloped. This paper is a contribution to this developing debate.

Keywords

Acknowledgements

An earlier draft of this paper won the “Best Legal Paper” award at the RICS COBRA research conference in New Delhi, 10-12 September 2013. The author would like to thank the editor and the anonymous reviewers for their helpful and insightful comments that have improved this paper considerably. I would also like to thank Sophie Boyron and Gavin Byrne, both of Birmingham Law School, University of Birmingham, who commented on earlier drafts of this paper. Any errors or omissions remain the author’s. Thanks are also offered to Ian McDonald, Research Officer at Birmingham City University, for kindly proofreading the final draft.

Citation

Sidoli del Ceno, J. (2014), "Compulsory mediation: civil justice, human rights and proportionality", International Journal of Law in the Built Environment, Vol. 6 No. 3, pp. 286-299. https://doi.org/10.1108/IJLBE-09-2013-0036

Publisher

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Emerald Group Publishing Limited

Copyright © 2014, Emerald Group Publishing Limited

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