Obligation Of Settlement: Advantages And Pitfalls Of Mandatory Mediation From A Global North Perspective
Shrutika Chopra, Campus Law Centre (University of Delhi)
Introduction
Most nations consider access to justice a fundamental right, generally enshrined in their respective constitutions. However, defining the terms ‘access’ and ‘justice’ succinctly is an arduous task. Furthermore, legal systems worldwide find it even more difficult to enforce the letter in the spirit, primarily because the term ‘access to justice’ is rooted in contradiction, as access alone does not necessarily ensure justice (Vettori, 2015). At best, access to justice is diminished; at worst, it is denied altogether because legal systems are inherently complex and plagued by issues such as delay, costs, uncertainty, interference, and unethical practices. In the modern era, mediation is generally considered a one-stop solution to all these problems and a means of achieving access to justice.
Black’s Law Dictionary has defined mediation as “A method of non- binding dispute resolution involving a neutral third party who tries to help the disputing parties to reach a mutually agreeable solution." (Garner & Black, 2014). The foundational design of mediation involves voluntariness at its core. A directive of the European Parliament was issued to streamline some aspects of mediation in civil and commercial matters in EU states, which mandated mediation to be a voluntary process, but paragraph 14 of the said directive allowed the states to enact legislation making mediation compulsory, provided that the parties right of access to justice is not hampered (Roşu, 2010). This contradiction is significant because it forms the crux of the argument this paper aims to address – an issue Professor Anderson raised almost two decades ago: whether mandatory mediation is an oxymoron, given its clash with the voluntary nature of the process (Queck Anderson, 2025). Since then, many nations have enacted statutes which incorporate mandatory mediation. As a result, the debate over the necessity of mandatory Alternative Dispute Resolution (ADR) has been reignited. This paper will first discuss the different types of mandatory mediation practices and later trace the origins of mandatory mediation, and dissect its efficacy and shortcomings by analysing its impact on the legal systems of developed economies across three continents, adopting a bird’s-eye view. Because sometimes distance allows you to see the trees as well as the forest.
