Making sense ofthe MPs’ Constituency Works

M Jashim Ali Chowdhury

Assistant Professor of Law, University of Chittagong &

PhD Candidate (Legislative Studies), King’s College London

Published in the Daily Star, Law and Our Rights, 22 Decemeber, 2020

Link: https://www.thedailystar.net/law-our-rights/news/making-sense-the-mps-constituency-works-2015349 

How problematic the constituency activities of our MPs may appear, parliament members’ constituency work is considered necessary in all types of representative democracies. Professor Philip Norton of the UK House of Lords has outlined at least seven aspects of the MPs’ constituency work. They act as safety valve for the freedom of expression and participation of the people. They act as providers of authentic information on governance and public policies. They also act as local dignitaries, advocates of constituency causes, benefactors or welfare officers for individual constituents, powerful friends and lastly, as promoters of constituency interests (Philip Norton, “The Growth of the Constituency Role of the MP”, Parliamentary Affairs, Volume 47, Issue 4, 1 October 1994, pp 705–720 at 706-708). While constituency work may be considered an important public relations tool for the law makers, Bangladesh does not seem to bear the hypothesis. Bangladeshi MPs feature four out of Norton’s seven-role-narrative. They mostly have been benefactors for their constituents, powerful friends, advocates and/or promoters of constituency interests. Regrettably they rarely act as representative and participatory safety valve on behalf of the people. They surely are not the providers of information and/or transparency on government activities and policies.

While the benefactor role has declined in significance in advanced parliamentary systems, trends in Bangladesh are the opposite. In line with the clientelist tendencies of our society, MPs vying for infallible loyalty from their constituents would need to earn and maintain their reputation through private charity, benevolence and patronage. They would also need to channel official resources, power and time towards that direction. MPs also need to present themselves as very powerful friends of their constituents. Representing an extremely hierarchical and unequal society, they direly need to appear powerful enough to have necessary connection, access and persuasion at the centre or upper echelon of government that can bring competitive projects, public goods to their constituents and also solve personal, administrative and legal problems of their people. In doing this, they tend to take sides of mastaans, corrupt political and social allies and development contractors who constitute a strong local power base and control the local units of political parties. While such a naked patronisation of corrupt elements may appear self-defeating from an electoral perspective, elections in Bangladesh have their own problems. Fought mainly on partisan rhetoric and personality cults of the party leaders, MPs do not need to bother much about public opinion as long as their local power bases and party endorsement remain intact.

Within the parliament, our MPs are more constituency men than law makers and accountability watchers. They almost invariably use their parliamentary tools like ministerial question, draw attention notice, motion and general debate to pursue constituency benefits and mostly shun down their role in democratic accountability, legislative scrutiny and national policy making. Several arguments have been advanced to explain this type of total localisation of national politicians. One such explanation claims that development of intense bi-partisan competition between the AL and BNP in the recent past has reduced the number of ‘safe’ seats across the country. MPs therefore need to hold their ground strongly ever. Though this may be true for a few strongly favourite local heroes, MPs in general can barely rely on constituency work as an assurance of their re-election. People vote mostly in party line and for the selection of prime minister rather than individual MPs.

It appears that MPs do constituency work not to secure re-election. It is rather to secure re-nomination from the parties. The central leadership in each party “nominates” the candidates for parliamentary polls. Unlike the matured democracies, where constituency units of political parties play a decisive role in candidate selection, local units in Bangladesh simply lack the luxury. It is therefore vital for an incumbent to have a very strong hold over the constituency and the party units therein so that strong leadership contenders do not rise from within the party. They would nurture factionalism within the party and establish an army of loyal workers who would prevent leadership challenge and guard an ‘undisputed’ authority for them. An aged and long serving MP would install their children or family members to take on the baton. This, of course, is not to say that parties don’t change candidates at all. They do. This, however, is not for the emergence of new talent from the grass root. The old ones might have fallen out of favour of the central leaders. His/her political heir may have failed to garner enough hold over the local units.

There is a high command’s interest too. Central party leadership needs to compensate the MPs against deprivation of their rightful involvement in national policymaking and parliamentary oversight (Nizam Ahmed, “Parliament and Poverty Reduction in Bangladesh: Role of the MPs”, South Asian Survey, Vol. 25(1-2), pp 163-182 at 178). In diverting them away from parliament, party leaderships accomplish at least two important goals. First, subjugating and co-opting the autonomously elected local government bodies through political MPs is easier than trying this through administrative and bureaucratic machinery. Secondly, Bangladesh’s political environment makes it seriously important that ruling party is not left solely with the administration and police forces to check anti-government mobilisation from grass-root. Alert and powerful MPs at the constituency level make sure that opposition or mass mobilisations do not rise from the root leaving the administration to deal only with the capital – Dhaka.

While the Supreme Court of Bangladesh has offered inconsistent views on the constitutionality of MPs’ local government interferences – supporting it in Barrister Ziaur Rahman Khan v. Bangladesh 20 BLD (HCD) 120 and opposing it in Anwar Hossain Monju v. Bangladesh BLT (HCD) 86, the people should have been the arbiter of this democratic decay. Unfortunately, that too is failing badly. While the people in general are allergic to this phenomenon, their objection is not moored on institutional or constitutional role awareness. If they are frustrated, that is for the discriminatory or partisan treatment they might receive from their MPs, not for the MPs’ neglecting their principal task – legislative and policy oversight of the government. Hence the parliamentarians; constituency work is duly acknowledged as a failure of formal political representation and a shape shifting towards informal representation where “politics meet culture” (Zahir Ahmed, “From Shape Shifting to Collusion in Violence: An Ethnography of Informal Relationships between Bangladeshi Members of Parliament and their Constituents”, Legal and Political Anthropology Review, Vol. 42(1), 2019, pp 5-20 at 17).

Is Mandatory Mediation the future?
Experiences in the UK



Mohammad Kader
Solicitor of England and Wales, UK

M Jashim Ali Chowdhury
Ph.D. Candidate, King's College London, UK



Published in the SCLS Law Review Vol 3 No 3 (Sept. 2020) pp 31-37

Link: http://www.sclsbd.org/jounral  

p. 31

Abstract

This paper argues that Mediation has been extremely emphasized recently in the administration of civil justice in the U.K. Explaining the series of English cases, particularly the most recent Lomax v Lomax decision, the paper sets out the English legal system's historic journey towards a full-fledged adoption of Mandatory Mediation. Experiences from Italy (E.U.), Canada and the U.S.A. are almost touched upon where relevant. The central argument of the paper remains that the legal world – common law or civil law alike – is moving towards Mandatory Mediation as a sensible alternative to the adversarial, time and money consuming traditional civil process. The prelude on Bangladesh at the beginning is added for setting a stage for the Bangladeshi readers from which they may feel the relevance of the topic we are talking about.

  

A Prelude on Bangladesh

Mediation as an efficient model of alternative dispute resolution (hereinafter A.D.R.) is gaining momentum in the administration of civil justice in Bangladesh. The cost-effective, expert-led, time-bound and confidential process of Mediation without relying on a formal adjudicative process makes it an attractive option in terms of outcome and peace of mind. Bangladesh's impressive experience with family court mediation (under sections 10 and 13 of the Family Courts Ordinance 1985) has inspired its inclusion in the Civil Procedure Code (sections 89A) as back as 2003. Mediation was later extended to the appellate stages (section 89C) in 2006. Mediation at both the trial and appellate stages were made mandatory by another amendment in 2012. The Legal Aid Act of 2010 was amended in 2015 to introduce meditation at the legal aid processing stage. The Civil Procedure Code was again amended in 2017 to formalize the process of Mediation through the legal aid officer. These apart, the Village Court Act of 2006 and the Arbitration Act of 2012 also accommodate the scope of Mediation. Though there is a perception that the Mediation is yet to be utilized to its full potential in Bangladesh, the current paper tries to bring in the development of Mandatory Mediation in the U.K. as the embodiment of global trend in this regard.

Introduction

The protracted and costly process of litigation is falling out of favor day by day. The Administration of Civil Justice in the U.K. is also seeking its way out of the costly and cumbersome process of litigation. Mediation is forcefully proposed as a viable alternative 

                                                                    p. 32

in this regard. It is less time consuming, less costly and more effective in terms of outcome for the parties and burden reduction for the courts. Legal systems around the world are opting for a pre-action procedure of Mediation and similar other consensual upshots of alternative dispute resolution (hereinafter A.D.R.). This essay investigates the practices, prospects and problems of making mediation "mandatory" in the U.K.

After discussing the historical evolution of the mandatory mediation movement in the U.K., the essay touches upon experiences from Italy, Canada and the U.S. State of mandatory Mediation in the U.K. will be analyzed within the framework of Civil Procedural Rules (hereinafter C.P.R.) and the latest direction of case laws including the latest decision of Lomax v. Lomax.[1] One of the principal dilemmas associated with mandatory Mediation is how to force the parties towards it and how to sanction the recalcitrant parties failing to "behave". Another issue of vital importance is how to make the parties "willing" to do a legally sanctioned involuntary process of Mediation. The bottom line argument of the paper, therefore, rests with a warning that while mandatory Mediation, influenced by a global appreciation of the device, is justifiably gaining momentum in the U.K., challenges would lie with better informing the litigants of the benefits of the development. It would also call for better educating and training the accredited mediators, in whose hands lies the future of the process.

 

Understanding the Mediation

Mediation as an offspring of A.D.R. involves an impartial third person, the mediator, who would help the parties to come to a mutually acceptable resolution to their dispute.[2] Adjudication and arbitration, though categorized as A.D.R., involve a legal approach to dispute resolution, a formal arbitrator or tribunal and lastly, a formal judgment binding the parties.[3] Compared to these, Mediation is a non-binding, non-technical process where the mediator -  lawyer or non-lawyer - would be facilitating the parties coming forward in good faith and in search of an amicable solution.[4]

 

Growth of Mediation in the U.K.

Mediation has grown in volume and importance for commercial and family disputes across the world. There is an increased use of mediation clauses in commercial agreements. While Mediation as a compulsory procedure is endorsed in the U.K. only recently, Part 1 of the Civil Procedure Rules (hereinafter C.P.R.) has 'encouraged' the parties to mediate long since. It is claimed that Lord Woolf's 'Access to Justice' report of 1996 was the progenitor of A.D.R. in the U.K.[5] Though the Woolf Reforms aimed at reducing the cost of litigation, 

p. 33

it was not wholly successful in the remediation of the problems of contentious litigations. Later, several other people of expertise, including Jackson LJ and Phillips and Clarke L.J.J. joined the call.[6] In 2011, the U.K. Ministry of Justice (hereinafter MoJ) proposed a system of automatic mediation referral and also a sanction for failure to comply with the route.[7] Though some tried to argue that the U.K.'s move towards a mandatory model of Mediation is "practically and normatively problematic" and hence an "unwelcome development,"[8] consistent pattern of judicial precedents in the U.K. however, has welcome it in the system. Accordingly, mandatory Mediation got its authoritative thrust in 2019 when the England and Wales Court of Appeal (hereinafter EWCA) upheld the legality of a court-ordered non-consensual early neutral evaluation (E.N.E.) in commercial matters under C.P.R.

 

English courts' "Encouragement" for Mediation

As regards Mediation, the English courts have traditionally followed a tune of encouragement rather than compulsion.[9] Even the mediation clauses in commercial contracts were interpreted as unenforceable agreements to negotiate.[10] It was argued that agreement to negotiate is in effect an agreement to agree - which is legally void - and also an agreement to negotiate in "good faith"[11] or to apply one's "best endeavours"[12] – both of which are vague and unenforceable. This literalist view of mediation clauses however did not go unchallenged.[13] It was asserted that an express previous undertaking to negotiate must, at the least, impose some "implied obligation(s)" upon the parties.[14] As regards the problem of unenforceability, it was asked by Lord Neill as to how the common law courts could historically adjudge a "reasonable endeavor"[15] threshold, while a "good faith" threshold was lacking in justiciability.[16]

Lord Neills' view found strong support from a 1992 case in New South Wales, Australia, namely – The Hooper Bailie case. Giles J., in that case, drew a clear distinction between an agreement to agree and an agreement to negotiate. Giles J. was of the opinion that an agreement to negotiate, being one to go through a process, could be enforced judicially.[17] 

p. 34

The distinction was later endorsed by the English courts in Dunnett v Railtrack Plc[18] and Cable & Wireless v. I.B.M.[19] Now, the mediation clauses being judicially enforced,[20] attention moved towards the desirability of a mandatory approach to Mediation and tools that might be applied towards that direction. 

The English courts, in a disguised bid to "encourage" Mediation, have used different forms of A.D.R. orders and detailed recommendations as carrots and at the same, threats of sanctions as sticks. Courts admittedly did this in pursuance of the C.P.R.'s "overriding objective" of dealing with cases justly and proportionately.[21] Absent the scope of imprisoning someone for not mediating, courts usually sanctioned costs upon the recalcitrant.[22] There have been suggestions of bringing the contempt of court or dropping of the case from the docket[23] and even imprisoning - as a last resort - under the C.P.R.[24] Courts however, did not resort to either course, reckoning a possible violation of the European Court of Human Rights (hereinafter ECHR) perhaps.

English Courts' journey towards Mandatory Mediation

Realizing the below the bench performance of voluntary mediations, the U.K. High Court and Court of Appeal soon started to rise up and pass different A.D.R. orders.[25] Lord Wolf recognized the A.D.R. as a "must" in public fund related cases.[26] In Dunnett v. Railtrack, Schiemann LJ recommended a pre-appeal stage of Mediation while Brooke LJ, described the duty to aid the court, by following its A.D.R. orders, as an important consideration in awarding costs.[27] Dunnett was a judgment where a winning party lost its right to costs against the loser as a sanction against its reluctance to pre-trial A.D.R. In the same year, Lightman J., in Hurst vs. Leeming vehemently criticized the high cost of civil litigation and the importance of A.D.R. in the English civil justice system.[28]

Shokusan v Danovo[29], however, marks one of the earliest expressions of judicial interest in mandatory Mediation as such. Though the mediation enthusiasts were extremely unhappy with the growth of tedious litigations,[30] moving straight to a strict rule of mandatory Mediation appeared problematic. Though the Children and Families Act of 2014 have compulsory information sharing and pre-trial assessment, it falls short of introducing 

p. 35

compulsory Mediation as such.[31] The recent A.D.R. report of the Civil Justice Council, therefore, suggested a 'Notice to Mediate' formula, which would impose a burden upon the opposition to 'consider it seriously'.[32] The proposed Mediation (Scotland) Bill of 2019 also ended up in compulsory information sharing and assessment and fell short of compulsory Mediation.[33]

The most aggressive step, however, came from the England and Wales Court of Appeal in 2019 when it held that a judge-led E.N.E. under the C.P.R. does not require the consent of the parties.[34] It was an inheritance dispute between the spouse and stepson of a deceased under the Inheritance (Family and Dependants Act) 1975. The spouse's proposal to find a settlement through the E.N.E. was refused by the stepson. Mrs. Justice Parker of England and Wales High Court expressed her dire helplessness in not being able to order a mandatory E.N.E., while, in her opinion, the case 'crie[d] out, indeed scream[d] out,' for it.[35] At the appeal, the EWCA was rather straight in holding that consent of parties under C.P.R. rule 3.1(2)(m) was not required in this case. Moylan LJ held that absent an express requirement of consent in the rules C.P.R.'s, the 'overriding objective' of cost efficiency and speedy disposal would get priority.[36] It is interesting to note that Lomax is not a mediation case per se. Therefore, the EWCA distinguished this case[37] from the situations of Halsey v Milton Keynes N.H.S. Trust[38] , which took an encouragement approach over a compulsory one. Yet, the EWCA has shown intuitiveness in reckoning that its decision in Lomax is going to fire up a movement for mandatory Mediation and hence gave a bright green light to the movement by putting in the record that "the courts have gone a long way since Halsey".[39]

 

Automatic Referral Approach to Mandatory Mediation

Mandatory Mediation has been promoted in jurisdictions like Italy, Canada and some states within the U.S.A. Approaches taken by those jurisdictions comprise a rather innovative Automatic Referral System (hereinafter A.R.S.) approach to Mediation.

The Court of Justice of the European Union (hereinafter CJEU) in Alassini vs. Telecom Italia case[40] considered Italy's legal requirement of automatic mediation referral in telecommunication disputes.[41] CJEU considered the matter in light of articles 6 and 13 of the European Convention on Human Rights (ECHR) and also article 47 of the European Charter of Fundamental Rights (ECFR). Opponents of compulsory Mediation argued that it 

p. 36

would restrict the litigants' right to protection of the court.[42] The Italian government's argument was based on burden reducing and efficiency-enhancing potentials of the requirement.[43] The CJEU found the Italian A.R.S. conducive to effective judicial protection. This, in fact is a reconfirmation of Dyson LJ's critique of the U.K.'s Halsey decision. Dyson argued that mandatory Mediation might at best cause a short delay in the court process, which could not be construed as interference with peoples' right to have trial as such.[44]

Like the Italian government, the government of Ontario, Canada commissioned a Civil Justice Review (C.J.R.) which recommended mandatory Mediation.[45] Rule 24.1 of the Civil Procedure thereafter established a mandatory mediation procedure in non-family civil matters coming to the Ontario Superior Court of Justice. Rule 24.1  has been demonstrably successful in expediting disposal of cases.[46] Importantly, the A.R.S. system adopted in Ontario has a three-prong test for the parties not wishing to pursue it. They need to show that they have understood the process fully, they have an explanation for considering it ineffective and also, they have an alternative way of cost-effective dispute resolution.[47]Compared to this, the A.R.S. in the U.K. has been criticized for containing a rather lax rule of exemption.[48]

Again, various states in the U.S., such as Florida, Virginia and Tennessee, have A.R.S.s for Mediation. The proactive approach of the U.S. courts was showcased in re Atlantic Pipe Corp, a case in the U.S. Court of Appeals for the First Circuit. It was held that a federal trial court has the inherent authority to order mandatory Mediation if appropriate.[49]

Contradiction with Confidentiality Rule 

The C.P.R. accommodates a degree of compulsion by posing a threat of awards of expenses upon the unwilling party. C.P.R. r 44.5(3) states that "efforts made" by the parties "before and during the proceeding" will have an impact on the award of cost.[50] This appears in contradiction with the confidentiality rule of Mediation.[51] If the recalcitrant parties are to be punished for their conduct (show of unwillingness) during a forced mediation, it will impact the confidentiality of the process and voluntariness of the settlement itself. 

p. 37

Admittedly the most attractive feature of Mediation is the scope to negotiate "without prejudice".[52] Now, pursuing the C.P.R. r 44.5(3) poses a risk of damaging a process which the judges so dearly sponsor. A recent decision of the Supreme Court in Oceanbulk Shipping v TMT Asia suggested that without prejudice, communications may be used as a "factual matrix" for construction of the resultant settlement agreement.[53] While such use of without prejudice communications may help to understand a resultant settlement in its proper context,[54] its possibility itself constitutes a Damocles' sword upon the mediating parties. While article 7 of the European Mediation Directive seeks to protect mediation confidentiality by limiting its breach only for the sake of "overriding considerations of public policy",[55] the pre-Oceanbulk U.K. courts would use an "interest of justice" threshold. Apparently, the European standard is more rigorous than that of the U.K. It is apprehended that the post-Oceanbulk court might be willing to look into without prejudice communications if those appear "relevant" for deciding cases.[56] It appears that the U.K.'s move towards mandatory Mediation would need to reconcile a "clear and strict boundaries" around the lifting of mediation confidentiality.

 

Conclusion

The U.K.'s move towards mandatory Mediation is clear. England and Wales already have compulsory A.D.R. in family matters for quite some years. Scotland took a very decisive step towards that direction in 2019 through its Mediation Bill. Italy, Australia, Canada, U.S.A., Turkey and, very recently, Portugal has introduced mandatory Mediation in various areas of civil justice administration, including family disputes, commercial litigations, telecommunication disputes and consumer protection etc.[57] England and Wales' online Money Claims Portal has a pre-action mediation system included in it. The trend clearly supports the Lomax v. Lomax court's view that Halsey's reservation to mandatory Mediation is on the verge of collapse. Yet, the concept itself being a new one, it is likely to be clothed with suspicion and reluctance.[58] Hence, Lord Clarke emphasized mediation studies as the key to compulsory mediation smooth integration within the C.P.R.[59]Also important in this regard is the availability or unavailability of a duly qualified stock of mediators. Mediators remain key to the success of the process which might be imposed upon otherwise unwilling parties. It is the competence, skill and charisma of the mediators that could make them believe in the process. It has, therefore, been aptly pointed out by the U.S. District Court of Appeal in re Atlantic Pipe Corp:

Mediation with the assistance of a skilled facilitator gives parties an opportunity to explore a much wider range of options, including those that go beyond conventional zero-sum resolutions.[60]

---

[1] Pauline Lomax vs. Stuart Lomax [2019] EWCA Civ 1467

[2] Martin Shapiro (1981), ‘Courts – A Comparative and Political Analysis’, University of Chicago Press, p. 3.

[3] R. J. Ridley-Duff and A. J. Bennett, (2010), “Mediation: developing a theoretical framework

to understand alternative dispute resolution”, a paper presented before the British Academy of

Management, University of Sheffield, 14th-16th September 2010.

[4] Jens M. Scherpe and Bevan Martin (2013), “Mediation in England and Wales: Regulation and Practice” in Klaus J. Hopt, Felix Steffe (ed), Mediation: Principles and Regulation in Comparative Perspective, Oxford University Press, pp 365-454.

[5] Lord Woolf MR, “Access to Justice Final Report” Interim Report in 1996 & Final Report in 2006, Available online: https://webarchive.nationalarchives.gov.uk/20060213223540/http://www.dca.gov.uk/civil/final/contents.htm; Accessed on May 6, 2020.

[6] Jackson LJ, “Review of Civil Litigation Costs”, Final Report, December 2009 (Chapter 36); Lord Phillips CJ, “Alternative Dispute Resolution: An English Viewpoint”, India, 29 March 2008; Lord Clarke, MR, “Mediation - An Integral Part of Our Litigation Culture”, a Lecture in Gray’s Inn, 8 June 2009.

[7] The UK Ministry of Justice, “Family Justice Review”, November 2011, Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/217343/family-justice-review-final-report.pdf, Accessed on May 7, 2020.

[8] Helen Waller, “Towards Mandatory Mediation in England?”, The Student Journal of Law, https://sites.google.com/site/349924e64e68f035/issue-5/towards-mandatory-mediation-in-england (Accessed on May 8, 2020).

[9] Lord Dyson (2011), "A Word on Halsey v Milton Keynes”, 77(3) Arbitration 337

[10] Per Denning LJ, Courtney & Fairbairn Ltd vs. Tolaini Brothers (Hotels) Ltd [1975] 1 WLR 297, p. 301

[11] Per Ackner LJ, Walford v. Miles [1992] 2 AC 128, p. 138.

[12] Per Millet LJ, Little v. Courage Ltd [1995] CLC 164, p. 169

[13] Sir Anthony Clark MR (2008), “The Future of Civil Mediation” Speech at the Second Civil Mediation Council Conference, London, May 8, 2008, available at: https://www.innertemplelibrary.com/2008/05/the-second-civil-mediation-council-national-conference-the-future-of-civil-mediation-speech-by-sir-anthony-clarke-master-of-the-rolls/ Accessed on 11 May 2020.

[14] Alan Berg (2003), “Promises to Negotiate in Good Faith” 119 Law Quarterly Review 357.

[15] Queensland Electricity Generating Board vs. New Hope Collieries [1989] 1 Lloyd’s Rep 205, PC

[16] Patrick Neill (1992), “A Key to Lock Out Agreements” 108 Law Quarterly Review 404

[17] Hooper Bailie Associated Ltd vs. Natcon Group Pty Ltd [1992] 28 NSWLR 194, p. 206.

[18] Dunnett vs. RailtrackPlc [2002] EWCA Civ 303

[19] Cable & Wireless Plc vs. IBM UK Ltd [2002] EWHC 2059

[20] DGT Steel & Cladding Ltd vs. Cubitt Building & Interiors Ltd [2007] EWHC 1584 (TCC); Hyundai Engineering & Construction Co Ltd v. Vigour Ltd [2004] [Hong Kong] HKEC 444

[21] Civil Procedural Rules 1998 (CPR), Rule 1.1(1)

[22] Ibid, Rule 44.5.

[23] Lord Phillips CJ, Supra Note 6, quoted in Shahla F. Ali (2018), Court Mediation Reform: Efficiency, Confidence and Perceptions of Justice, (Chapter 3), Edward Elgar.

[24] CPR Schedule 1 and 2.

[25] Hazel Genn (2008), ‘Judging Civil Justice: The Hamlyn Lectures 2008’, Cambridge University Press, 2010, at p 98.

[26] Per Lord Wolf, Cowl and Others v Plymouth City Council [2001] EWCA Civ 1935

[27] Supra note 18.

[28] Hurst vs. Leeming [2002] EWHC 1051

[29] Shokusan vs. Danovo [2004] All ER (D) 61 (Aug)

[30] Paul Randolph (2013), “Compulsory Mediation”, https://www.mediate.com/articles/RandolphP1.cfm , Accessed on May 9, 2020

[31] The Children and Families Act 2014, Section 10(1).

[32] Civil Justice Commission, “ADR and Civil Justice”, CJC ADR Working Group Final Report, November 2018, Recommendation 24, at p 53, Available: https://www.judiciary.uk/wp-content/uploads/2018/12/CJC-ADRWG-Report-FINAL-Dec-2018.pdf; Accessed on May 9, 2020

[33] Proposed Mediation (Scotland) Bill, November 2019; Available: https://www.parliament.scot/S5MembersBills/20191112FinalSummary(1).pdf , Accessed on May 9, 2020.

[34] Supra note 1.

[35] Ibid, Para 123

[36] Ibid, Para 32

[37] Ibid, Para 25

[38] Halsey vs. Milton Keynes General NHS Trust [2004] EWCA Civ 576

[39] Supra Note 1, Para 27.

[40] Rosalba Alassini vs. Telecom Italia SpA (C-317/08) [2010] 3 CMLR 17 ECJ.

[41] Ibid, Opinion of AGKokott’s, Para 1.

[42] Ibid, Para 43

[43] Ibid, Para 45

[44] Lightman J (2007), “Breaking Down The Barriers”, The Times Online, July 31, 2007.

[45] Rosenberg and Folberg (1994), “Alternative Dispute Resolution: An Empirical Analysis” 46 Stanford Law Review 1487.

[46] Colin Szkarlat (2019), Ontario’s Mandatory Mediation Program Lessons, Outcomes, and the Impact on Dispute Resolution, Global ADR Strategies (GADRS), Available at:  https://www.margaretmitchell.org.uk/sites/www.margaretmitchell.org.uk/files/2019-08/Appendix%203%20PK%20-%20Research%20-%20Ontario%27s%20Mandatory%20Mediation%20Program%20for%20Paul%20Kirkwood%20%28002%29.pdf , Accessed on May 10, 2020

[47] Prince (2007), “Mandatory Mediation: the Ontario experience” 26 Civil Justice Quarterly 79, at p. 84.

[48] Dorcas Quek (2010), “Mandatory Mediation: an Oxymoron? Explaining the feasibility of Implementing a Court-Mandated Mediation Program”, 11 Cardozo Journal of Conflict Resolution 479 at p. 501

[49] Re Atlantic Pipe Corp. United States Court of Appeals for the First Circuit 304 F.3d 135 (2002)

[50] Supra note 21, Rule 44.5(3)(a)(ii).

[51] A Marriott (2004), “Mandatory ADR and Access to Justice”, 4 Arbitration 307

[52] AKC Koo (2011), “Confidentiality of Mediation Communications”, 30(2) Civil Justice Quarterly 192.

[53] Oceanbulk Shipping and Trading SA vs. TMT Asia Ltd [2010] UKSC 44

[54] Adrian Zuckerman (2011), ‘Without prejudice interpretation - with prejudice negotiations: Oceanbulk Shipping and Trading SA v TMT Asia Ltd’, 15(3) The International Journal of Evidence and Proof, 232 at p. 238.

[55] Directive 2008/52/EC, Article 7.

[56] Supra note 8.

[57] Tang Houzhi (2009), “Mediation is developing around the World”, 17 (Supp 1) Asia Pacific Law Review 31.

[58] Kent Dreadon (2005), “Mediation: English developments in an international context”, Arbitration 112.

[59]  Lord Clarke, MR, supra note 6.

[60]  Atlantic Pipe Corp., 304 F.3d 135 (1st Cir 2002), Para 39.