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(d)
The voluntariness objection
A number of respondents argued that an essential aspect of mediation is that it is
voluntarily undertaken by the parties and accordingly, that to make the process
mandatory or to penalise a refusal to mediate would be fundamentally inconsistent
with mediation. The Working Party fully accepts that mediation must be voluntary in
the sense that no attempt should be made to force anyone to settle a case. However, it
is not accepted that a procedural requirement for the parties to at least attempt
mediation up to a defined stage, or a rule exposing a party who unreasonably refuses
to attempt mediation to costs sanctions, would be incompatible with the mediation
process. Such procedural requirements can plainly be introduced while preserving
court-annexed mediation as a wholly consensual process.
When reference is made in this Final Report to a settlement reached after mediation,
what is envisaged is a settlement voluntarily agreed to by the parties. This is of the
essence of mediation as reflected, for instance, in the HKIAC Mediation Rules.
(a)
Thus, Rule 1 provides :-
"Mediation under these Rules is a confidential, voluntary, non-binding and private dispute
resolution process in which a neutral person (the mediator) helps the parties to reach a
negotiated settlement."
(b)
Moreover, by Rule 11, any party can withdraw at any time, thereby bringing the
mediation to an end.
The CEDR Model Mediation Procedure and Agreement contains a similar termination
rule
and, in relation to settlement, provides
:-
"Any settlement reached in the Mediation will not be legally binding until it has been reduced
to writing and signed by, or on behalf of, the Parties."
Notes
Clause 14.
Clause 13.
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