Mandatory Mediation and the Rule of Law

Abstract

This article evaluates mediation practice against the core principles that Thomas Bingham identifies as constituting the rule of law. It identifies three forms of compulsion and discusses these in the light of Thomas Bingham’s eight principles. The article examines how voluntary mediation may increase access to justice, a significant component of the rule of law, but an element of compulsion, in its strict sense, impedes the constitutional right of access to the courts and stifles the development of precedent. To comply with the rule of law, in its more substantive version, any instruction that parties attempt to settle via mediation needs to be subject to judicial scrutiny, must ensure that the cost of mediation is not disproportionate, that there is a genuine willingness of the parties to engage in the process with good faith, and that it involves no greater structural inequalities than in litigation.