The Rise of Mediation and its Erosive Effect on the Rule of Law in Dispute Resolution

AuthorSonia Anwar-Ahmed Martinez
The Rise of Mediation and its Erosive Effect
on the Rule of Law in Dispute Resolution
Sonia Anwar-Ahmed
Martinez
Mediation is considerably more than just a
pragmatic, confidential, consensual, and
alternative way of resolving intractable
disputes. Through its overriding concern with
efficiency, mediation undermines the
democracy and justice-seeking tenets of the
Rule of Law, sought through the public
adjudication of the law by the courts.
1
For
example, the privatisation of disputes rejects
the value of public adjudication, denying the
public important information, hampering
public debate, and stunting the development of
the law.
2
Additionally, the informalisation of
dispute resolution rejects the application of the
law by the courts, thereby failing to vindicate
rights and dismissing the importance of due
process.
3
This corrosive trend is accentuated in
civil and family mediation. Civil mediation
1
Tom Bingham, The Rule of Law (Penguin 2011) ch 1.
2
Jack B Weinstein, ‘Some Benefits and Risks of Privatisation of
Justice Through ADR’ (1996) 11 Ohio St J on Dispute Resolution
241.
3
Owen M Fiss, ‘Against Settlement’ (1984) 93 YLJ 107.
266 SLJ 6(1)
highlights the privatisation of points of high
public impact and interest that ought to be
scrutinized in the public eye.
4
Family
mediation underlines the informalisation of
sensitive issues in intra-family conflicts which
ought to be properly and duly identified,
assessed, and addressed.
5
Therefore, in
prioritising expediency, dispute resolution is
gradually ‘losing the language of justice’.
6
Introduction
This paper examines the systematic erosion of the Rule of Law
in the sphere of dispute resolution, as depicted by civil and
family mediation. Section I will preliminarily outline the
importance and aims of the Rule of Law tenets in the realm of
dispute resolution, discussing the value of public adjudication,
the desirability of the application of the law, and the benefits
4
Ian Mackenzie, ‘Privatisation of Justice: Balancing Efficiency
and Access to Justice’ (Slaw, 13 November 2014)
of-justice-
balancing-efficiency-and-access-to-justice/> accessed 18 March
2018.
5
Liz Trinder, Alan Firth and Christopher Jenks, '"So Presumably
Things Have Moved on Since Then?" The Management of Risk
Allegations in Child Contact Dispute Resolution’ (2010) 24 IJLPF
29.
6
Hazel Genn, ‘What Is Civil Justice For? Reform, ADR, and
Access to Justice’ (2012) 24 YJLH 397.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT