Successful mediation of any dispute is largely dependent on the skills and expertise of the mediator and the willingness and good faith of the parties to the mediation to engage in that process.
So it is to be welcomed that the proposed new High Court Rule 41A doesn’t make mediation compulsory but is rather intended to facilitate mediation accepted by the parties or recommended by the court.
Forcing mediation on unwilling parties would only result in a tick box exercise with little chance of success and a waste of time and money.
The proposed rule will apply to all disputes before the High Court. It is not specific to any type of dispute although it would be welcomed in particular by the healthcare industry in facilitating speedy and cost effective resolution of medical malpractice disputes.
While the window for comments on the current draft closed early this year no doubt the Rules Board at firstname.lastname@example.org will still welcome any constructive comments you may have.
The proposal does need tightening up to ensure confidentiality of all information and evidence disclosed in the mediation process so that parties mediating in good faith can take comfort that confidential disclosures made will not be used in litigation.