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As mediation becomes increasingly embedded within the civil justice landscape of Europe, its theoretical virtues—voluntariness, neutrality, confidentiality—are coming under renewed scrutiny. Far from being a uniformly benign process, mediation is increasingly being shaped by ethical dilemmas, psychological dynamics, and legislative imperatives. This article explores the growing tension between the ideal of voluntary participation and the realities of institutional pressure, with particular focus on the European and Cypriot frameworks.
Drawing from legal theory, practitioner perspectives, and landmark case law, the analysis unfolds across five interconnected dimensions: (1) the core theory of mediation and its evolving practice; (2) the challenges of confidentiality and caucus ethics; (3) the legal robustness and risks of Mediation Settlement Agreements (MSAs); (4) the rise of mandatory mediation and its constitutional limitations; and (5) the legislative landscape, from EU Directive 2008/52/EC to the Cyprus National Law and the proposed Article 15A amendments.
The goal is not only to clarify what mediation is—but to interrogate what mediation is becoming. As the boundaries between facilitation and coercion blur, and as the EU increasingly encourages mandatory pre-trial ADR, the mediation process must be re-examined in light of ethics, access to justice, and the proportionality principle under Article 6 of the ECHR.
This legal essay opens with a conceptual examination of mediation as presented by both academics and practitioners. Mediation is approached as a structured yet flexible process, grounded in voluntariness, neutrality, and confidentiality. The discussion then develops through a critical reflection on the multiple layers of confidentiality—including the complexities of private caucus meetings—and extends into ethical dilemmas around mediator impartiality and process dynamics. Particular emphasis is placed on whether parties may feel pressured into settlement, raising concerns about subtle coercion within an otherwise voluntary framework. By confronting these issues, the essay sets the foundation for questioning where mediation theory proves robust—and where it risks collapsing under real-world constraints.
Based on the CEDR’s, maintained by The Londoner Mediator Herman Zandt[1] and as well by the Greek Professor Dr. Anna Pleuri,[2] definition for Mediation someone can describe that resolution as the “flexible process conducted confidentiality in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution”.[3]
Another popular definition among academicians and practitioners is that: “is a voluntary, non-binding, and ‘without prejudice’ process in which a specially trained third party intervenes in a dispute and attempts to bring the parties together into a settlement agreement”.[4]
EUM defines Mediation as “a structured process […] whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator.”
Such attempts to define and taxonomize mediation shared the common necessity that a third party, namely the mediator has to assist the parties in negotiating and reaching a settlement. Unlike judges or arbitrators who impose decisions, the mediator’s role is distinctly different; the mediator facilitates discussions and helps the parties develop their own solutions. The mediator does not dictate the outcome of mediation but instead aids in the exploration of new options for resolving the issues at hand. They guide the parties towards possible resolutions and assist in tailoring outcomes to meet the specific needs of those involved. By actively listening to critical disagreements and potential resolutions, the mediator helps prioritize key issues and foster mutual understanding. The mediator’s role goes beyond mere facilitation; they create an environment where parties feel heard and understood, which is crucial for effective mediation. According to Herman Zandt[5] and Dr. Anna Pleuri,[6] mediator neutrality and confidentiality are pivotal elements in accomplishing successful mediation outcomes. These principles ensure that parties can communicate openly, and the mediator can help them co-create sustainable agreements. Moreover, mediators need to manage the process dynamics carefully to mitigate any power imbalances or pressures that might arise, thus safeguarding the mediation’s integrity.
Dr. Anna Pleuri has mapped out the fundamental elements of mediation, emphasising the following concepts: (i) the process is voluntary and non-binding, (ii) confidentiality, (iii) the process is speedy and flexible, (iv) it is cost-effective, (v) parties have control over the process and outcome, (vi) variety options as possible settlements, and (vii) when parties reach a settlement, the written agreement of the settlement is binding.[7]
According to the aforementioned critical characteristics, it can be concluded that in the mediation process, parties are free to decide to mediate their dispute at any stage, and it is possible to conduct mediation alongside with litigation proceedings. However, it is generally understood that a mediation process that begins while court proceedings are at a later stage is considered to be a late phase for mediation. It is common practice for contracts, agreements, partnerships, memorandums, or articles of associations to include clauses for Mediation and/or Alternative Dispute Resolutions. Any information disclosed during mediation must not be leaked, published, or used during litigation proceedings without the express approval of both parties. Maintaining confidentiality is essential for all operations in mediation, including preparations, openings, exploration, negotiations, etc. The purpose is to protect the reputation of entities and the private life of individuals. Most mediations are arranged within a few days, with the formal mediation sessions lasting one day. The duration and speed of a mediation as a dispute resolution process are aligned with the dogma that delayed justice is denied justice.
Deepening into mediation provides control over the process and its outcome. The possible variety solutions that arise from a successful mediation can focus on compensation, restoring, preserving, and maintaining the relationship between the involved parties. In a reconciled way, Dr. Anna Pleuri believes that litigation proceedings cannot determine the future of the parties’ relationship.[8] Comparing mediation versus litigation in such a superficial manner is inaccurate because court actions are not solely about monetary remedies for violated contracts, contravention of civil rights, torts liabilities, and delict facts. Judges have a broad range of powers that include significant discretion in cases such as libel and defamation, where they may imply whatever decision matches with the facts and the law, including publishing apology articles or explanatory notes. Judges also have a considerable degree of discretion in real estate cases, especially those related to the Act 81(I)/2011 (as amended by Act 48(I)/2017) or Private Nuisance cases. In these circumstances, the judge’s decision usually includes operative rulings concerning how to stop the nuisance or rescue the undertaking sale agreement of the property. However, when parties’ issues relate to situations where judges have power beyond monetary remedies, an attempt for mediation before the court can be an effective means to settle disputes and demonstrate good faith and willingness to resolve the issue.
Confidentiality serves as the cornerstone of mediation, pivotal that information shared during the mediation process remains private and cannot be disclosed outside of the mediation setting. This confidentiality encourages open and honest communication between the parties involved in the dispute, creating a safe space for negotiation and resolution.[9],[10]
The sanctity of mediation confidentiality is integral to the trust-building necessity, ensuring that discourse within the mediation ambit is insulated from subsequent legal entanglements. It underpins the mediation ethos by endorsing principles of sincerity, equity, and impartiality, while simultaneously engendering an informal ambiance that is conducive to voluntary and forthright participation. [11]
Mediators are entrusted with the critical responsibility of upholding confidentiality, a mandate that necessitates discretion in the handling of all communicative exchanges within sessions. The adeptness with which mediators execute this duty is paramount, as it reinforces the participants’ faith in the mediation process and catalyzes open dialogue.
But there is another layer of confidentiality. By theory and good practices, even when may vary slightly depending on the specific context, the mediation process consists of several stages. For example, in the very beginning, the mediator introduces themselves and explains the mediation process, including the roles and responsibilities of all participants involved. After is the stage of opening statements where each party has the opportunity to make an opening statement to express their perspective on the issues at hand. The opening statements may also include a phase where the parties may have a joint discussion facilitated by the mediator to clarify issues, interests, and goals. During the intermediate phases of a mediation process, the parties enter into the stages of negotiation, either jointly or through the mediator, to work towards a mutually acceptable agreement. At the closure and if the parties reach a resolution, the terms of the agreement are documented and signed by the parties. Deeping on the professional care and the judgment that has been applied by the mediator, may also summarized the agreement’s key points or why parties fail to reach a settlement, discuss next steps, and provide information on how to implement the agreement.[12]
Between the initial joint discussions with the open statements, and the negotiations, there is space for private caucus sessions. These sessions are particularly beneficial when parties need a confidential space due to discomfort, heightened emotions, or strong egos.[13] In such instances, the mediator may facilitate by arranging separate rooms or sessions, commonly called caucuses, to support the parties in moving towards a resolution.
So, in addition to the need for confidentiality in the mediation setting as a whole, confidentiality is also needed during the private caucus sessions. To ensure parties are aware of what information may be exchanged, the mediator delineates the boundaries of confidentiality before the caucus sessions. The aim is to safeguard the privacy of caucus discussions and avoid revealing any sensitive details without explicit consent.[14] Of course, it’s important to exercise vigilance to prevent accidental or other leaks of confidential information. While there are concerns about unintended disclosures and the possibility of mediator bias or favouritism during or after caucuses, skilled mediators are adept at preserving confidentiality and neutrality, minimizing at the same time the chances of forming coalitions with any party.[15]
Discussions on ethics and morality in mediation regarding confidentiality involve balancing privacy and transparency, ensuring fairness and trust, and upholding professional standards. Overusing confidentiality can impede the resolution process, leading to accountability issues and unethical practices. Maintaining a balance between confidentiality and transparency is crucial, with parties needing access to relevant information. Mediators may face ethical dilemmas when confidentiality conflicts with other principles, requiring integrity and adherence to guidelines. Informed consent about confidentiality limits is essential for parties. Upholding professional integrity is key to preventing misuse of confidentiality. In some cases, public interest may override confidentiality. Overall, discussions should prioritize transparency, fairness, and ethical conduct while addressing ethical dilemmas to maintain the integrity and effectiveness of the mediation process.
When it comes to caucus meetings in mediation, also some ethical considerations need to be examined carefully. Mediators must balance confidentiality and transparency, fairness, and ethical conduct.[16] Overusing or misusing confidentiality can have moral implications and affect the integrity of the mediation process. To uphold the values of fairness, respect, and trust in mediation, mediators must navigate these ethical considerations carefully.
For example, does the practice of discussing privileged information in private settings pose a potential challenge to the trust between the mediator and the parties involved? This raises concerns about the integrity of the relationship and whether confidential disclosures might erode the trust essential for effective mediation. Secondly, should there be defined limits on the confidentiality of information shared during these sessions? In other words, how does a mediator navigate the delicate balance between maintaining confidentiality and ensuring that pertinent information is disclosed to facilitate a fair, equitable, or safe settlement? Thirdly, it is a fact that the unintentional disclosure of sensitive details can jeopardize the trust and confidentiality expected in mediation, potentially leading to complications or breakdowns in the negotiation process. Fourthly, could private caucusing create a sense of alliance between the mediator and one party, leading to a compromise in the mediator’s impartiality? Finally, does the practice give the mediator too much influence over the settlement terms? Furthermore, does it reduce the checks and balances that come from face-to-face dialogue, potentially increasing the risk of mediator manipulation? These are just a few questions able to emphasize the need for a critical assessment of the ethical implications of caucusing and its effect on the mediation process and outcomes.
While confidentiality aims to protect sensitive information, it can sometimes lead to parties feeling isolated, hindering direct communication crucial for conflict resolution. This confidentiality serves a dual purpose: providing a safe space for parties to share openly and raising debates on its limits within the mediation profession. The mediator’s ability to discuss concerns with a party while maintaining confidentiality tends to foster more trust than if the mediator were to disclose all information to the other party. Dr. Christopher W. Moore answers to those who oppose the caucus claim that it is difficult to prevent mediators from accidentally sharing confidential information, general attempt to promote the necessity to avoid caucusing at all, that the emperical statistics and experiences of many mediators prove that confidentiality can be maintained with only a few accidental breaches.[17]
Concerns about mediator impartiality and manipulation in caucus settings are valid and require careful handling. While critics argue that the private nature of caucusing could foster bias or inadvertently disclose confidential information, the experiences of many mediators suggest that such pitfalls can be navigated with skill and ethical awareness, as well with well-written code of conducts. Mediators must balance rapport-building with neutrality, ensuring parties see them as unbiased facilitators. Empowering parties to take ownership of the settlement process is crucial, especially in one-time mediation scenarios where reliance on professional codes is key.
The emotional landscape of parties remains and shall remains central. While concerns about mediator bias and potential manipulation are valid concerns, the essence of effective mediation lies in building understanding and trust. A mediator’s approachability, sincerity, and empathy can be pivotal in fostering cooperation between parties. When parties feel understood and valued, they are more likely to engage openly in mediation, facilitating better communication and collaboration.[18] I agree with Professor Jean Poitras’ position, who suggests that “after the first joint session the mediator should proceed only with caucus. Instead, we are proposing that the mediator use a quick caucus to build trust early in the first joint session. After that short caucus, the mediator can proceed with joint meeting or further caucus depending on what is needed to move forward the resolution of the conflict.”[19]
The mediator’s access to privileged information and control over communication channels can significantly influence the negotiation dynamics. When the mediator possesses detailed knowledge about acceptable settlement ranges, and psychological states, there’s a heightened risk of inadvertently steering the settlement terms. While this information can be beneficial for understanding underlying issues, it must be managed carefully to prevent the mediator from overshadowing parties’ autonomy in decision-making. In cases where the mediator has ongoing involvement with the parties, such as in disputes within specific sectors, there are inherent checks on the mediator’s influence. This repeated engagement fosters accountability and ensures that the mediator’s role remains facilitative rather than directive, preserving the parties’ agency in shaping their own settlement.
In the beginning of this essay, it was discussed how an effective mediation process assists disputing parties to resolve their issues through negotiation with the help of a neutral third party, and later we discuss the importance of confidentiality.
Ideally, mediation should empower both parties to take charge of their own decision-making and reach a mutually beneficial resolution. However, it is important to note that the mediation process can also cause significant stress for those involved.[20]
Nina Khouri discusses that mediation can be significant stress for the parties includes the pressure to accept a deal or proceed to trial, the high stakes of the dispute, and the various dynamics (factual, legal, commercial, and psychological) at play. Additionally, pressure to settle can come from the other party involved in the dispute, and in some cases, even from a party’s own lawyer or the mediator.[21]
A phenomenon that may hurt mediation is called Decision Making Fatigue. In simple words, it occurred late in the day during mediation when parties may be suffering from compromised capacity for rational decision-making. This can be caused by factors such as being hungry, tired, or unwell, particularly for inexperienced individuals participating in the mediation process. It is a challenge for the mediator to persistently and patiently work with the parties to reach a settlement without exerting undue pressure. It is suggested that the effort to reach a settlement may become self-defeating if it results in a settlement agreement that is not truly consented to by the parties.[22]
The plaintiff of the US Court Case Olam[23] contested, but unsuccessfully, the validity of the settlement agreement she signed at the end of the mediation, which lasted from 10 a.m. to 1 a.m. the following day. Olam argued that she was under undue influence and suffering from physical and emotional distress, which affected her capacity to consent.
Mediation Settlement Agreements[24] are generally treated by courts as contracts, and traditional contract law principles are applied in disputes arising from efforts to enforce them. In fact, MSAs may be viewed as “super contracts”. emphasizing their level of enforceability and protection compared to traditional contracts. This is largely attributed to the stringent confidentiality rules and the limited allowance for certain contract defenses such as duress, fraud, or lack of capacity, making MSAs particularly robust and reliable in the eyes of the law.[25]
However, the concept of “bullet-proof” protection for MSAs is somewhat superficial. Complex issues arise when a party claims duress or challenges the validity of the settlement agreement reached. In such situations, the party may seek judicial intervention. This directly conflicts with the confidentiality that is the cornerstone of the mediation process. Courts may need to balance this principle with the need to address claims of duress or coercion to ensure fair and just outcomes when the validity of a settlement agreement is in question.[26],[27],[28]
It’s important to note that despite mediation’s goal of amicable dispute resolutions, challenges to MSAs can arise, compelling parties to seek resolution in court. The overarching goal of mediation is to encourage constructive dialogue and amicable resolutions, even when mediation efforts fail, to minimize the necessity for prolonged litigation.[29],[30]
Here we will explore the mandatory imposition of mediation, whether through court orders or legislative measures. Drawing from key case laws, it focuses on court cases regarding mandatory mediation to provide an understanding of how enforced mediation operates within the legal framework, public policies, and the right to access justice.
One challenge with mediation is that it inherently suggests that both parties have the potential to compromise their positions. However, in reality, some disputes hinge on issues of proof or other substantive, procedural or technical matters. For example, a dispute may not be about the extent of damages but rather about the occurrence of an event itself, where the plaintiff seeks the return of a deposit based on the occurrence, and the defendant denies that the event occurred or that it was part of the agreement or contract. If the term “mediation,” derived from the Latin word “mediare,” meaning “to go between” or “being in the middle,” implies an intermediary role.[31] An intermediary role does not clearly apply to disputes where the question is binary, such as whether certain financial amounts should be refunded or not at all. Consider a scenario where a patient seeks compensation from an oncological surgeon for aesthetic flaws after surgery. While the degree of damage from aesthetic issues can be highly subjective, the existence of an aesthetic defect and the surgeon’s duty of care are objective matters. Thus, before subjective disagreements arise, there must first be a resolution of an objective contention. In essence, mediation presupposes the ability for negotiation and compromise, which may not always align with the nature of certain disputes that require factual, legal, technical, technocratic, typical or procedural determinations.
In this context, the discussion of introduction of a mandatory mediation schemes brings to the fore a range of other related and equally, if not more, important debates. For instance, should there be circumstances where mediation should be avoided or should follow, rather than precede, the partial or main adjudication of the case? There is definitely a need to avoid these instances where, both aesthetically and practically, mediation amounts to nothing more than a discussion about “buying peace”.
Debating the introduction of mandatory mediation in civil justice raises several important concerns. However, mediation sessions are typically brief, lasting about 1.5 hours,[32] and their success can be assessed within a week. Therefore, investing 1.5 weeks to potentially avoid 100 or 200 weeks of court proceedings is more than reasonable. Moreover, mediation is a highly flexible process that can address not only the quantification of damages but also facilitate the exchange of information, testimony, and perspectives—elements that are crucial for expediting court procedures.
The UK Court of Appeal’s Halsey[33],[34] case stands as a landmark decision and has become guidance case law not only for mediation but for all ADR methods,[35] including simple negotiations.[36] It offers compelling example of the complexities surrounding mediation refusal and has significantly shaped the legal landscape of the common law metropolis. These discussions are likely to be echoed in Cyprus, particularly in relation to the new Civil Procedure Rules.
The Court of Appeal addressed whether a court can compel parties to engage in mediation. Lord Dyson, delivering the judgment, concluded that compelling truly unwilling parties to mediate an unresolved dispute would constitute an unacceptable obstruction to their right of access to the court under Article 6 of the European Convention on Human Rights.[37]
Upholding the first instance decision, Dyson LJ found the Claimant failed to prove that the Defendant acted unreasonably when mediation was rejected. However, this particular case was very appropriate for ADR. Also, Dyson LJ stated that a court cannot force a party to mediate on the ground that it would infringe Article 6 of ECHR. He continues that a court can only robustly encourage ADR. Α very characteristic is the reasonable of para 9:
“It is another to order them to do so. It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court. The court in Strasbourg has said in relation to article 6 of the [ECHR] that the right of access to a court may be waived, for example by means of an arbitration agreement, but such waiver should be subjected to “particularly careful review” to ensure that the claimant is not subject to “constraint” (see Deweer v Belgium [1980] 2 EHRR 439, para 49).”
The Halsey case became a landmark because it acknowledged the value of mediation and established some non-exhaustive criteria regarding the taxed of court costs when mediation is avoided:
(a) The nature of the dispute:[38] The court explicitly excluded certain cases as inappropriate for mediation and ADR. It was concisely stated that mediation is not appropriate “where the parties wish the court to determine issues of law or construction which may be essential to the future trading relations of the parties,” cases involving of fraud or other dishonest commercial conduct, where injunctive or other relief is essential, and where a point of law arises periodically and a binding precedent.
(b) The merits of the case:[39] Initially, the court highlighted the risk that a Claimant might use mediation as a tactical ploy, threatening the Defendant with court cost sanctions to exploit mediation even if they have a very weak case. This could pressure the defendant into agreeing to mediation or proposing a settlement. Therefore, it was suggested that the criterion should consider the merits of the case, specifically whether a party reasonably believes they have a strong case. Only then should the refusal to mediate be considered as reasonable. Consequently, borderline cases are generally more compatible with mediation and ADR.
(c) Other (sub)criteria: such as other settlement methods have been attempted[40], the costs of mediation would be disproportionately high,[41] when mediation is suggested late phases[42] or whether the mediation had a reasonable prospect of success,[43] mainly under the meaning of intransigence and/or obdurate.
Halsey has faced criticism, at times particularly intense. For the purposes and economy of this legal essay, as the author Ι have selectively chosen to discuss the counterargument that Halsey case actually represented a retrograde step compared to the interim[44] and final[45] reports of Lord Woolf. It is evident that there are a few more counterarguments against Halsey; however, it is attempted that by discussing this particular argument, the overall criticism will also collapse.
In the Woolf Reforms of 1996, after documenting the majority of the pathologies afflicting the justice system —such as excessive costs, delays, fragmentation, and uncertainty— Lord Woolf made the insightful assertion that there is a need for a new landscape in civil litigation. Particularly said that there is a need for a new landscape in civil litigation underpinned by what he called the “overriding objective,” which embedded principles of justice, equality, economy, and proportionality. This overriding objective can be summarized as “[l]itigation will be avoided wherever possible.”[46]
The overriding objective was vitiated in the Civil Procedure Rules of 1998[47] in the UK, which reconfirmed the importance and influence of the Woolf Reforms.[48] Interestingly, nearly identical overriding objective have crept into the Cypriot CPR.[49],[50] Under the CPR’s concept, the overriding objective aims to push the courts to handle the cases justly and at proportionate costs. This is guided to be achieved through mechanics and tools like pre-actions protocols, promotion of ADR, the use of cost penalties for refusals to settle out-of-court, and general by laying up the courts with the powers of adjunct to court proceedings and costs.
Indeed, Lord Dyson’s judgment in the Harsley case was that forcing litigants to mediate would be an unacceptable obstruction of their right to access justice under Article 6 of the ECHR. Many scholars viewed this as the UK Court of Appeal and with the Halsey’s case hindering progress in relation to the overriding objective.[51]
However, and primarily, even the most vehement critics of Halsey accepted that the Lord Woolf Reform was at pains to point out that ADR should be encouraged but not mandated. So, and considering that we are referring to a case from the far 2004, it is clear that we have to expect some statements to be out-of-date as obiter dictum comments, and we have to insist to attempt a more significant and deeper interpretation for Halsey as well as challenging the notion that it hinders the promotion of mediation and general Alternative Dispute Resolutions (ADR). Namely, the failure of parties to settle their dispute is not a subjective matter or simply a matter of the parties’ statements, and actually demands from parties to provide valid justifications before excluding themselves from mandatory norms of mediation; and general Halsey establish the idea of using courts only as a last resort. In other words, the terms “unreasonable” or “unwilling parties” are very specific criteria with entirely objective, though not exhaustive, parameters. Scholars such as Debbie De Girolamo et al., after citing a series of subsequent cases, conclude that:
“This small sample of cases after Halsey (by no means a complete list) shows that the Halsey Guidelines have not only been carefully applied but appear to have been widened over time. It is now beyond reasonable argument that litigants cannot escape their obligation at least to consider the suitability of ADR […].”[52]
In Hichman (2006)[53], among other presents a comparison between mediation and simple negotiation by discussion, offer, and counter-offer. That is, simple negotiation is a simpler process, cheaper, and less time-consuming compared to mediation. However, a skilled mediator is likely to be more effective in more complicated cases, so mediation can work with slightly more unwilling parties. In this case, the particular issue was that out-of-court discussions failed because the second defendant was not willing to enter into a negotiation where the settlement would be significantly higher than what was considered appropriate by the first defendant. The court deemed their refusal reasonable because, as the judge stated: “I consider that this was a legitimate stance because, as I have stated, otherwise the threat of a costs consequence can be used to extract more than a claim is worth.”[54]
In Northrop Grumman (2014)[55], the claimant asked for a reduction in the costs it would have to pay to the successful defendant, on the grounds that the defendant denied to take part in a mediation. The Judge went on to state that the defendant had failed to explore mediation whereas the claimant had failed to accept the offer which the defendant had made in order to settle that dispute. Particularly was held that “I consider that [the defendant] reasonable view that it had a strong case is a factor which provides some but limited justification for not mediating,”[56] but the conclusion was that the cost sanctions to be imposed, both because the defendant rejected the mediation and because the claimant rejected the out-of-court settlement, are offset and cancel each other out. In para 70 went on to state, “[a] refusal to mediate means that the parties have lost the opportunity of resolving the case without there being a hearing. A failure to accept the offer has equally meant that the parties have lost the opportunity of resolving the case without a hearing.”[57]
In Thakkar (2017),[58] it was held that while mediation might have been suitable in this case and could have potentially produced favorable outcomes, the defendant’s delay in either accepting or rejecting the offer resulted in the claimant withdrawing the offer and refusing to engage in any further discussions regarding an out-of-court settlement. The court deemed this claimant behavior as reasonable due to the expected erosion of trust in the defendant’s actions.
Lomax (2019)[59] marked a significant moment in the discussion around compulsory ADR, illustrating that courts could mandate certain forms of ADR processes even if one party did not agree. While it doesn’t explicitly state that Early Neutral Evaluation (ENE) is a “softer solution” than mediation, Moylan LJ was keen to point out that ENE could be distinguished from mediation.[60] Furthermore, Moylan LJ determined that ENE does not prevent parties from having their disputes resolved by the court if they don’t settle at or after an ENE hearing. It adds a step to the process without obstructing access to the court and can aid in the fair and sensible resolution of cases.[61]
General in these cases, Hichman (2006), Northrop Grumman (2014), Thakkar (2017) and Lomax (2019), although they are obviously not exhaustive and are just a few examples, they all rely on the Halsey criteria and elaborate on the initial guidelines to more precisely delineate the criteria and align them with modern perspectives on the justice system.
Mandating mediation in contracts disputes where a jurisdiction clause explicitly excludes mediation, or where there is no express provision for mediation, intersects with the principle of freedom of contract in the realm of commercial disputes, as it could impose a specific method of dispute resolution on parties who did not originally include such a clause in their contract. On the other hand, it is, essential to consider also the enforceability and impact of mediation and/or jurisdiction clauses within contracts. In essence, the implementation of mandatory mediation clauses should be carefully balanced to ensure that parties’ rights and autonomy are upheld while promoting efficient and effective dispute resolution mechanisms.[62] The freedom of contract principle asserts that parties should have autonomy and the ability to determine their contractual rights and obligations without undue external interference.
In his discussion of mandatory mediation, Dorcas Quek Anderson maintained an underestimated distinction.[63] He use the terms (a) “coercion into mediation” and (b) “coercion within mediation” or “coercion into a settlement”. With this approach, D. Q. Anderson aims to provide a clearer framework for legal practitioners, potentially reducing the complexity of decisions related to mandatory mediation in the future.
Furthermore, D. Q. Anderson concluded that there are no significant empirical statistics showing any difference in the dynamics between mandatory and voluntary mediation. Deepening it, he drew a crucial conclusion: since the statistics on settlement rates between mandatory and voluntary mediation are similar, mandatory mediation cannot lead to any form of coercion within mediation or coercion to settle the dispute.
In 2019, academics Bruno Zeller and Leon Trakman introduced another dimension to the discussion, precisely the concept of public policy.[64],[65] They highlighted the dialectic that, unlike arbitration, in mediation the parties have complete control over the outcome, while in arbitration, the outcome is determined by an arbitral tribunal. Nevertheless, if an outcome is reached, it is mutually accepted by both parties in the dispute. Thus, the argument stands that since mandatory mediation does not preclude access to the courts and is supported by thoroughly a grounded public policy, the imposition of mediation cannot be categorically criticized.
After all, it can be seen as quite appropriate Bryan Clark’s observation on the Civil Justice Report regarding the mandatory nature of ADR.[66] Bryan Clark asserts that any departure from Article 6 of the ECHR should be construed as “a proportionate reaction to the necessity of regulating the dispensation of civil justice and fundamentally does not pose an outright impediment to seeking justice via judicial means.”[67] This indicates a synthesis of the arguments surrounding Article 6 of the ECHR and the need to rationalize the justice system as a matter of public policy.
A tangible example of public policy is the concept of “overriding objective.” In the case of Lomax, which we examined previously, the overriding objective’s argument was explicitly used to justify the imposition of ADR. The Court of Appeal’s decision was also grounded in applying the “overriding objective” as set out in the UK CPR. As I examined in this essay, this overriding objective requires the court to actively manage cases to ensure they are dealt with justly and efficiently, significantly influencing the court’s approach to case management and handling disputes. By emphasizing the overriding objective, the Court in Lomax highlighted that introducing ENE as an additional step does not impose an “unacceptable constraint” on parties’ access to the courts but rather aids in facilitating the sensible and efficient resolution of disputes.
The European Union seems more open to the concept of mandatory mediation.[68],[69] Article 5(2) of the EUM does not prevent Member States from requiring mediation or incentivizing its use with sanctions for non-compliance. Notably, cases like Alassini (2010)[70] and Menini (2018)[71] affirm that mandatory mediation does not infringe upon Article 47 of Charter of Fundamental Rights of the EU or the equal Article 6 of ECHR, provided it does not force settlements or result in significant costs and delays.[72] A report from June 2024[73] benchmarked the performance of voluntary mediation, noting that mandatory mediation often raises issues regarding the right to access justice.[74]
Here we will explore the legislative framework that underpins mediation in both the European and Cypriot contexts. Starting with Directive 2008/52/EC (EUM), which establishes the EU-wide baseline for cross-border mediation, the discussion then turns to Cyprus’s domestic law (Law 159(I)/2012) which harmonizes national practice with the Directive. We will also reflect on recent reform initiatives, including proposed amendments currently under public consultation by the Ministry of Justice. Finally, this part of the essay considers the role of mediation in international commercial disputes and examines how instruments such as the Singapore Convention inform its evolving legal status. By tracing both the foundational texts and the forward-looking debates, we aim to present a well-rounded view of how mediation is legislated, institutionalized, and practiced across jurisdictions.
As already mentioned in the introduction, Directive 2008/52/EC, also here referred to as the EU Directive for Mediation or just EUM, applies to domestic civil and commercial disputes, and parties may seek court declaration of the Settlement Agreement as enforceable. Para 10 of the EUM[75] further clarifies that situations in which the parties are not free to decide due to mandatory provisions of legislation shall not be covered by this directive.
Another interesting question regarding the EUM is to what extent it is a suitable text for domestic disputes that end in mediation. Article 2 explicitly limits the scope to cross-border disputes; however, recital 8 explicitly encourage that nothing shall prevents member states from enacting similar provisions for domestic disputes.[76] This is useful, for example, in figure out to what extent we can draw guidance from the CJEU even when the mediation relates to local matters.
The implementation of the Regulation was set for 21/5/2011, with Denmark having been exempted from the obligation to adopt this Directive from the outset. Furthermore, although the majority of countries adopted the Directive on time, the European Commission was forced to take action against Cyprus, the Czech Republic, France, Luxembourg, the Netherlands, and Spain.[77]
Another interesting aspect of the EUM is that it provides incentives for parties to participate in mediation.[78] In a report by a broader executive board of the EU, Bulgaria, Italy, and Hungary are commended for refunding 50% or even 100% of the court fees when parties engage in mediation.[79]
The National Law for Mediation, entitled The Certain Aspects of Mediation in Civil Disputes Act of 2012 (Act 159(I)/2012), aims to harmonize with the EU Directive for Mediation and regulate national mediation proceedings in civil disputes, including commercial disputes. The NLM covers civil disputes, including cross-border disputes, with certain exceptions such as disputes where parties are not free to decide under the relevant applicable law or labor disputes not included in cross-border disputes.
Right away, the NLM establishes the process of mediation, where a mediator, registered in the Register of Mediators, conducts the mediation upon request, regardless of the place, time, name or title of the process, or whether it takes place in the context of a court proceeding.
The NLM provides for the existence of a Register for Mediators where individuals can register as mediators. The Minister, upon recommendation from professional associations or chambers, has the authority to strike off mediators under certain circumstances, such as non-compliance with requirements, criminal convictions, or breaches of professional conduct.
The Article 10 emphasizes the importance of mediator independence, impartiality, and diligence during the mediation process. It also underscores the significance of disclosing any conflicts of interest to maintain the integrity of the mediation proceedings. In summary, the list of mediator duties includes:
NLM also imposes a series of duties on the judicial stakeholders to promote mediation to the general public. For example, the Ministry of Justice and Public Order shall provide the general public with the necessary information on how someone can start a mediation process. Lawyers, and according to the article 13(2), shall inform their clients for the options for mediation resolutions. According to the Article 15, judges shall to inform the parties on the use of mediation and the possibility of settlement of their dispute by using this procedure, as well as by mutual requests of the parties, the court procedures shall be postponed up to three months in order to utilise the mediation process.
Article 18 of the Act emphasizes the crucial importance of confidentiality during the mediation process. It clearly states that everyone involved in the mediation proceedings is bound to keep confidentiality. The mediator has the power to hold separate meetings with each party. Any information disclosed during these meetings is considered confidential and cannot be shared with the other party or any third party without the explicit consent of the party that provided the information. The legislation also recognizes the use of modern communication technologies during mediation, as long as the confidentiality principle is not compromised per the provisions outlined in the Section IV.
Furthermore, Article 23 establishes, unless otherwise agreed upon by the participant’s parties, neither the mediator nor any other person shall present evidence arising from or pertaining to the mediation process in civil court proceedings or arbitration. However, there are two exceptions to this rule; which we will also discuss later as provisions of CPR. The first exception is if disclosure is necessary to uphold public order, particularly concerning the welfare of children or preventing harm to an individual’s physical or psychological well-being. The second exception is if disclosure of the settlement agreement’s content is essential for its implementation or enforcement. Moreover, the mediator is obliged to maintain confidentiality beyond the termination of his professional activities as a mediator. Most importantly, Article 24 specifies that a statement made before a mediator during mediation proceedings cannot be used as evidence against any person in court except where it is needed, according to Article 23.
In the coming years, we anticipate significant activity in legislative and regulatory reforms for three reasons. Firstly, since February 2023, the Ministry of Justice announced the amendment of NLM and simultaneously called upon stakeholders for public consultation.[80] Ample time has thus elapsed for gathering opinions and promoting the outward orientation of legislative initiatives. Secondly, the new CPR rules have been already implemented, incorporating various innovations compatible with the merit of mediation (like pre-action protocols). Thirdly, we observe that the registry of mediators has reached saturation point, meaning there are enough practitioners to bear the national burden of mediation, even within the framework of legislative obligation.
An interesting aspect of the revision initiative is the activation of the regulatory framework for Mediation in Cyprus. According to Articles 33 and 34 of the NLM, the Cabinet of Ministers and the Supreme Court, respectively, were granted the power to issue procedural regulations, which would be published in the Government Gazette, regarding the institution of Mediation. Moreover, the law emphasizes that the Supreme Court primarily issues procedural regulations concerning the determination of the procedure for submitting the settlement agreement to the court. The announcement of February 2023 for public consultation concerned the law’s amendment and the issuance of the first procedural regulations for Mediation.
In relation to the legislative amendment, the most significant attempt for change is the new Article 15A, which seeks to make mediation mandatory for small claims. If the dispute’s subject matter is up to €5,000, the claimant is required initiate an initial mediation session. The claimant can either contact the other party or parties to the dispute to jointly appoint a mediator or choose a mediator from the Mediators Registry. In the event that the claimant appoints a mediator of their choice, the mediator contacts the other party or parties by any convenient means to ascertain whether there is an agreement on their appointment and seek their written approval. If no communication is possible or if no agreement is reached on the mediator’s appointment, then the Ministry of Justice appoints a mediator.
The mediator sets the time and date for the mandatory initial mediation session within 15 working days from the date of their appointment, and it is envisaged that the minutes of the initial session are kept and signed by the parties. These minutes should be submitted to the Court if a lawsuit is filed to examine the admissibility of the lawsuit. If the minutes are not submitted, the Court dismisses the lawsuit, after finding that the mandatory initial mediation session did not occur. The Court seized of the dispute may impose a fine of up to €150 on the party that did not attend the mandatory initial mediation session, despite being summoned to do so.
Personally, I disagree with the requirement to keep minutes that must be submitted for the admissibility of the lawsuit to be examined. Firstly, such a term may overlooks the tension of the emotions of the parties, especially during the initial discussions, and thus, it is expected that tensions may arise during the first session; If these reactions are recorded, even if they would constitute evidence according to principle of mediation confidentiality as well as articles 23 and 24, they could unconsciously influence the judge; while the defendant may challenge and object the submission of the minutes as a document containing inadmissible evidence. It is my position that access to justice cannot presuppose such a fragile procedure. Instead of minutes, it would be more functional and appropriate for the mediator to sign a Letter of Attestation stating to what extent he managed to communicate with the parties and how, and that, despite that effort, no settlement agreement was reached without further explaining the reasons for the inability to reach an agreement.
In the same vein, there is also a change regarding Article 13(2), whereby the general obligation of lawyers to inform their clients about the institution of mediation is now changed into a requirement for written notification, which should also include the procedure outlined in Article 15A.
At the 51st Session of the United Nations Commission on International Trade Law,[81] the Convention on the Enforcement of International Settlement Agreements and corresponding Model Law were finalised and approved on 26 June 2018. The Convention was finally named the “Singapore Convention on Mediation”.[82] This resulted from three years of debating and involvement from 85 member states and 35 international governmental and non-governmental organisations. The Convention became available for signing on 7 August 2019 in Singapore and was signed by 46 countries and was enforced after ratification by the first three countries, which were Singapore, Fiji and Qatar.[83],[84]
Even though Cyprus is not currently a party to the Singapore Convention on Mediation, it is essential to understand the Convention’s impact and mechanisms. By studying such global standards, Cypriot scholars and practitioners can evaluate and enhance their own understanding of the mediation framework. This comparison not only highlights the strengths and weaknesses of Cyprus’s current mediation practices but also underscores the importance of robust mediation mechanisms in fostering international trade and investment. The Convention shall to serve as a benchmark, indicating that mediation could finally acquire the same enforceable strength as arbitration under the New York Convention.[85] Adopting similar principles could greatly benefit Cyprus, positioning it as a more attractive destination for international commercial activities and dispute resolutions.
The SCM is a unique private international law tool that offers a structured approach for recognising and enforcing International Commercial Settlement Agreements achieved through mediation. It gives the mediated party the authority to enforce the resulting cross-border agreement in any Convention party country without resorting to legal action for contract breach.[86]
This Convention primarily targets to facilitate the enforcement of International Commercial Settlement Agreements that are a result of mediation. It pertains to written agreements resolving commercial disputes through mediation. However, it does not apply to agreements that have been approved by a court, concluded in the course of court proceedings, enforceable as a judgment in the state of that court, or recorded and enforceable as an arbitral award.[87]
A cross-border commercial dispute occurs when commercial activities with international elements and the involved parties are in conflict, or when parties from different countries do business and they are under disagreements. In other words, these types of disputes typically arise in the context of business transactions, trade agreements, investments, intellectual property rights, or other commercial dealings that transcend national borders. The parties involved may have their places of business or habitual residence in different countries, or the dispute may involve transactions, obligations, or activities across multiple jurisdictions. Resolving cross-border commercial disputes can be challenging due to the diverse legal systems, cultural differences, and logistical challenges that arise when parties from different countries are in conflict.[88]
The general focus of the Singapore Convention on Mediation is to provide a universal framework for enforcing international settlement agreements arising from mediation. This Convention seeks to establish a mechanism for the direct enforcement of such agreements across different jurisdictions, ultimately enhancing the certainty, finality, and enforceability of mediated settlement agreements in the context of international commercial disputes. This critical aspect of the Convention addresses a significant gap in the international dispute resolution landscape by promoting the use of mediation and providing parties with a dependable way to ensure compliance with their mediated agreements.[89]
Mediation is undoubtedly a valuable tool in civil justice, but it is not a universal panacea for all disputes. We cannot expect a one-size-fits-all solution to magically resolve every case – some conflicts simply demand the authoritative judgment and procedural safeguards that only a court can provide. It is true that both the UK and Cyprus have championed ADR as a way to ease overloaded court docket.[90] However, the “floodgates” argument in favor of mediation is not an absolute justification to divert every dispute away from litigation. Even the Law Society of England and Wales has cautioned against blanket compulsory mediation when it might be “detrimental to either party, or prevent access to justice”.[91] In short, promoting mediation should complement – not come at the expense of – the fundamental right to a day in court.
Indeed, certain cases will always require a courtroom resolution. Some disputes (for example, those involving urgent injunctions, allegations of fraud or other illegality, or novel points of law) are not amenable to mediation and may necessitate judicial intervention. Furthermore, if one or both parties earnestly want a public trial and judgment – perhaps to vindicate their rights or establish an important precedent; they are entitled to pursue that path.[92] The common law tradition, as reflected in English jurisprudence, has long recognized this. In the landmark case Halsey v. Milton Keynes General NHS Trust (2004), the Court of Appeal famously held that compelling unwilling litigants to mediate would pose “an unacceptable obstruction” to their right of access to the courts and could violate Article 6 of the European Convention on Human Rights. This underscores a key point: ADR should encourage settlement, but it must not subvert the parties’ right to seek justice through the courts. Even with recent shifts toward integrating ADR into civil procedure (e.g. the English courts now have express power to order parties to attempt ADR in certain circumstances), the voluntary nature and fairness of the process remain paramount. Any mandatory mediation regime must preserve each party’s ability to ultimately have their day in court if mediation does not resolve the matter.
Rather than treating mediation as a cure-all, a balanced multi-faceted approach is needed to improve civil justice. Both in England and in Cyprus, procedural reforms have introduced safety valves and incentives that work alongside mediation. For example, straightforward low-value claims can be channeled into simplified small claims procedures, ensuring minor disputes are resolved efficiently without overburdening the higher courts. Detailed pre-action protocols now require parties to attempt negotiation or ADR before filing a lawsuit, which often leads to settlement or narrowing of issues early on. If litigation does commence, judges are empowered to actively manage cases and encourage (even order) ADR at appropriate stages. Crucially, there are now stricter cost consequences for unreasonably shunning mediation. Courts frequently impose cost sanctions on parties who unreasonably refuse to mediate a dispute. In England, a successful party can even be denied some or all of their legal costs if they had earlier spurned a reasonable offer to mediate – a notable exception to the usual “winner gets costs” rule. Conversely, a party who declines ADR but ultimately prevails at trial is not punished so long as their refusal was reasonable in the circumstances (for instance, if they genuinely believed – and proved – that their case was very strong). Put simply, a litigant who avoids mediation and loses in court can expect little sympathy and perhaps even an indemnity costs order against them as a penalty, whereas one who bypasses mediation and wins had their strategic gamble validated by the result. In my view, this calibrated use of cost incentives is a prudent way to encourage mediation when appropriate while respecting a party’s decision to proceed to court when necessary.[93]
In conclusion, mediation should be embraced as a powerful mechanism for settlement – but not worshipped as an all-powerful remedy for every legal dispute. The experience in common law jurisdictions shows that the optimal path lies in integrating mediation into the civil justice system without idolizing it. The goal must be to filter out those cases that truly do not require litigation (thus saving time and expense for everyone), while still safeguarding access to justice for disputes that demand a judicial resolution. The new mandatory mediation framework in Cyprus for claims up to €10,000 is a positive step toward a more efficient system, but it should be implemented with care and flexibility. Parties still retain the right to go to court if mediation fails, and that right should remain inviolable. By combining ADR initiatives with other reforms – such as modernized case management, small claims courts, robust pre-action requirements, and sensible cost-shifting rules – we can strive to deliver quicker, more affordable resolutions without sacrificing fairness or the rule of law.
Finally, as a practicing lawyer in a common law-based system, I believe humility and pragmatism are key. Mediation is a means to justice, not an end in itself. It works wonderfully in many instances, but when it doesn’t fit, we must be ready to litigate and let the courts fulfill their constitutional role. The conversation on improving access to justice doesn’t end here. In a forthcoming article, I will continue to explore the evolving landscape of dispute resolution – including the role of new reforms (such as a revamped arbitration framework and other innovative measures) – and how these changes can further balance efficiency with the fundamental need for fair outcomes. The journey toward a more effective civil justice system is ongoing, and by learning from both successes and limitations of mediation, we can better navigate the path ahead.
[1] Unfortunately, during this research, it was impossible to locate the referred material and/or primary source.
[2] Anna Plevri, ‘Mediation in Cyprus: Theory Without Practice’ [2018] 30 Cyprus Review 233, p. 235.
[3] Herman Zandt, ‘Cost of Conflict: Hidden Outflow or Investment Opportunity?’ (Mediate.com, 28 May 2013) <https://mediate.com/cost-of-conflict-hidden-outflow-or-investment-opportunity/> accessed 30 March 2024.
[4] ‘Civil & Commercial Mediator (Course Manual)’ (ADR Group 2012), p 4.
[5] Herman Zandt, ‘Cost of Conflict: Hidden Outflow or Investment Opportunity?’ (Mediate.com, 28 May 2013) <https://mediate.com/cost-of-conflict-hidden-outflow-or-investment-opportunity/> accessed 30 March 2024.
[6] Anna Plevri, ‘Mediation in Cyprus: Theory Without Practice’ [2018] 30 Cyprus Review 233, p. 237.
[7] Anna Plevri, ‘Mediation in Cyprus: Theory Without Practice’ [2018] 30 Cyprus Review 233, p. 235-37.
[8] Anna Plevri, ‘Mediation in Cyprus: Theory Without Practice’ [2018] 30 Cyprus Review 233, p. 237.
[9] Mikheil Bichia, ‘Confidentiality of the Mediation Process and Ethical Dilemmas’ [2023] 2023 Alternative Dispute Resolution Yearbook 41, p. 42, 47.
[10] Michael Laubscher, ‘Contract as a Basis for Mediation Confidentiality’ [2021] 33 SA Mercantile Law Journal 112, p. 117.
[11] Mikheil Bichia, ‘Confidentiality of the Mediation Process and Ethical Dilemmas’ [2023] 2023 Alternative Dispute Resolution Yearbook 41, p. 43.
[12] Alexander Polsky, ‘The Five Steps of Mediation (and Negotiation)’ [2012] Plaintiff (Neubauer & Associates, Inc).
[13] Roselle L Wissler and Art Hinshaw, ‘Joint Session or Caucus? Factors Related to How the Initial Mediation Session Begins’ [2022] 37 Ohio State Journal on Dispute Resolution 391, p. 406.
[14] Christopher W Moore, ‘The Caucus: Private Meetings That Promote Settlement’ [1987] 1987 Mediation Quarterly 87, p. 92.
[15] Christopher W Moore, ‘The Caucus: Private Meetings That Promote Settlement’ [1987] 1987 Mediation Quarterly 87, p. 99 – 101.
[16] Christopher W Moore, ‘The Caucus: Private Meetings That Promote Settlement’ [1987] 1987 Mediation Quarterly 87, p. 99 – 101.
[17] Christopher W Moore, ‘The Caucus: Private Meetings That Promote Settlement’ [1987] 1987 Mediation Quarterly 87, p. 100.
[18] Roselle L Wissler and Art Hinshaw, ‘Mediators’ Views of What Can Be Achieved Better in Initial Joint Sessions and in Initial Separate Caucuses New Directions in Dispute Resolution and Clinical Education in the Post-Pandemic World’ [2023] 70 Washington University Journal of Law & Policy 235, p. 259.
[19] Jean Poitras, ‘The Strategic Use of Caucus to Facilitate Parties’ Trust in Mediators’ [2013] 24 International Journal of Conflict Management 23, p. 26.
[20] Nina Khouri, ‘Mediation’ [2018] New Zealand law review 101, p. 102.
[21] Nina Khouri, ‘Mediation’ [2018] New Zealand law review 101, p. 102, 113-14.
[22] Nina Khouri, ‘Mediation’ [2018] New Zealand law review 101, p. 103 & 109.
[23] Olam v Congress Mortgage Co., 68 F. Supp. 2d 1110 (N.D. Cal. 1999)
[24] Hereinafter MSAs
[25] Edna Sussman and Conna Weiner, ‘Striving for the Bullet-Proof Mediation Settlement Agreement’ [2015] 8 New York State Bar Association 22, p. 22.
[26] Edna Sussman and Conna Weiner, ‘Striving for the Bullet-Proof Mediation Settlement Agreement’ [2015] 8 New York State Bar Association 22, p. 24.
[27] Nina Khouri, ‘Mediation’ [2018] New Zealand law review 101, p. 102, 113-15.
[28] Laurence Boulle, ‘International Enforceability of Mediated Settlement Agreements: Developing the Conceptual Framework’ [2014] 7 Contemporary Asia Arbitration Journal (CAA Journal) 35, p. 40.
[29] Willingboro Mall Ltd. v 240/242 Franklin Ave., LLC , 215 N.J. 242, 71 A.3d 888 (2013)
[30] Brette L Steele, ‘Enforcing International Commercial Mediation Agreements as Arbitral Awards under the New York Convention’ [2006] 54 UCLA Law Review 1385, p. 1390.
[31] Jacques Faget, ‘Mediation and Domestic Violence’ [2004] Champ pénal <http://journals.openedition.org/champpenal/356> accessed 26 May 2024, p 8.
[32] Bryan Clark, ‘Mandatory Mediation in England and Wales: Much Ado about Nothing?’ [2022] Series 2 Vol. 4 Amicus Curiae 92, p. 101.
[33] Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576
[34] Author’s summary of the facts: The Claimant in the case is Lilian, and it concerned her husband Bert, who was admitted to the hospital at the age of 83, suffering from multiple serious health issues. He was immediately intubated and placed under the care of the hospital staff. However, he passed away two days later. Although the Claimant did not dispute that his life expectancy was very short, she argued that the feeding tube was improperly placed, causing the liquid food to enter his lungs instead of his stomach, which ultimately led to his death. Despite the hospital preventing the Claimant’s lawyer from attending the death inquest, the hospital insisted that liquid food was found in the patient’s lungs not due to incorrect intubation but because of aspiration from the stomach during death due to his renal failure and obstructive pulmonary disease. The law firm appointed by the Claimant proposed a settlement of £ 7.500, which was not accepted. Mediation was subsequently proposed again, but the Defendant Hospital’s lawyers refused, stating that they had been instructed “to take all necessary steps to resist a claim, to trial if necessary, should one be forthcoming.” The hospital’s lawyer expressly also said, “[a]s there is no negligence, the [Hospital] will not be settling this claim. In view of this, I do not believe it is appropriate to meet with you and discuss this claim or refer this case to mediation.” (Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, para 36-49) The Defendant believed it was reasonable to refuse to participate in mediation because they had a strong case. The court agreed with the hospital, but the Claimant appealed.
[35] Burchell v Bullard [2005] EWCA Civ 358
[36] Hickman v Blake Lapthorn and Another [2006] EWHC 12 (QB)
[37] ‘Compulsory ADR’ (Civil Justice Council 2021) <https://www.judiciary.uk/guidance-and-resources/mandatory-alternative-dispute-resolution-is-lawful-and-should-be-encouraged/> accessed 16 June 2024, p. 10-15.
[38] Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, para 17
[39] Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, para 18-19
[40] Ibid, para 20
[41] Ibid, para 21
[42] Ibid, para 22
[43] Ibid, para 23
[44] Harry Woolf, ‘Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales’ (Lord Chancellor’s Department 1995).
[45] Harry Woolf, ‘Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales’ (HM Stationery Office 1996).
[46] Debbie De Girolamo and Dominic Spenser Underhill, ‘Alternative Dispute Resolution and the Civil Courts: A Very British Type of Justice—The Legacy of the Woolf Reforms in 2022’ [2022] 4 Amicus Curiae 129, p. 133.
[47] Hereinafter UK CPR of 1998
[48] Bryan Clark, ‘Mandatory Mediation in England and Wales: Much Ado about Nothing?’ [2022] Series 2 Vol. 4 Amicus Curiae 92, p. 94.
[49] ‘Review of the Rules of Civil Procedure of Cyprus’ (Technical Assistance Project 2017/2018, IPA Ireland 2018), p. 4.
[50] CPR Rule 3.3.
[51] Bryan Clark, ‘Mandatory Mediation in England and Wales: Much Ado about Nothing?’ [2022] Series 2 Vol. 4 Amicus Curiae 92, p. 94.
[52] Debbie De Girolamo and Dominic Spenser Underhill, ‘Alternative Dispute Resolution and the Civil Courts: A Very British Type of Justice—The Legacy of the Woolf Reforms in 2022’ [2022] 4 Amicus Curiae 129, p. 142.
[53] Hickman v Lapthorn [2006] EWHC 12 (QB), para 24.
[54] Hickman v Lapthorn [2006] EWHC 12 (QB), para 24.
[55] Northrop Grumman v Bae Systems (Al Diriyah C4I) Limited [2014] EWHC 3148 (TCC).
[56] Northrop Grumman v Bae Systems (Al Diriyah C4I) Limited [2014] EWHC 3148 (TCC), para 60.
[57] Northrop Grumman v Bae Systems (Al Diriyah C4I) Limited [2014] EWHC 3148 (TCC), para 70.
[58] Thakkar v Pater [2017] EWCA Civ 117.
[59] Lomax v Lomax [2019] EWCA Civ 1467.
[60] Lomax v Lomax [2019] EWCA Civ 1467, para 25.
[61] Lomax v Lomax [2019] EWCA Civ 1467, para 26.
[62] Bruno Zeller and Leon Trakman, ‘Mediation and Arbitration: The Process of Enforcement’ [2019] 24 Uniform Law Review 449, p. 461.
[63] Dorcas Quek Anderson, ‘Mandatory Mediation: An Oxymoron-Examining the Feasibility of Implementing a Court-Mandated Mediation Program’ [2009] 11 Cardozo J. Conflict Resol. 479, p. 485 – 88.
[64] Bruno Zeller and Leon Trakman, ‘Mediation and Arbitration: The Process of Enforcement’ [2019] 24 Uniform Law Review 449, p. 461.
[65] Public policy refers to a set of, actions, funding priorities, and regulations related to a specific area. It is established and enforced by governmental entities and can involve the creation of laws, allocation of resources, and influence from different interest groups through education, advocacy, and lobbying. Public policy aims to tackle societal issues and can directly affect the legal, social, and economic frameworks within which individuals and groups function (Gaines Kilpatrick, ‘Definitions of Public Policy and the Law’ <https://mainweb-v.musc.edu/vawprevention/policy/definition.shtml> accessed 16 June 2024.).
[66] ‘Compulsory ADR’ (Civil Justice Council 2021) <https://www.judiciary.uk/guidance-and-resources/mandatory-alternative-dispute-resolution-is-lawful-and-should-be-encouraged/> accessed 16 June 2024.
[67] Bryan Clark, ‘Mandatory Mediation in England and Wales: Much Ado about Nothing?’ [2022] Series 2 Vol. 4 Amicus Curiae 92, p. 97.
[68] Bryan Clark, ‘Mandatory Mediation in England and Wales: Much Ado about Nothing?’ [2022] Series 2 Vol. 4 Amicus Curiae 92, p. 97-98.
[69] Felix Steffek, ‘Mediation in the European Union: An Introduction’ [2012] European e-Justice, p. 10.
[70] Rosalba Alassini v Telecom Italia (Joined Cases C-317/08, C 318/08, C-319/08 and C-320/08).
[71] Menini v Banco Popolare Società Cooperativ [2018] CMLR 15.
[72] ‘Compulsory ADR’ (Civil Justice Council 2021) <https://www.judiciary.uk/guidance-and-resources/mandatory-alternative-dispute-resolution-is-lawful-and-should-be-encouraged/> accessed 16 June 2024, p. 15.
[73] ‘The 2024 EU Justice Scoreboard’ (European Commission 2024) COM(2024) 950 <https://commission.europa.eu/strategy-and-policy/policies/justice-and-fundamental-rights/upholding-rule-law/eu-justice-scoreboard_en> accessed 24 June 2024, p. 26.
[74] The original wording of the note is: “The methods for promoting and incentivising the use of ADR do not include compulsory requirements to use ADR before going to court. Such requirements may raise concerns about their compatibility with the right to an effective remedy before a tribunal enshrined in the Charter of Fundamental Rights of the EU”.
[75] The original wording of the para 10: “[…] [I]t should not apply to rights and obligations on which the parties are not free to decide themselves under the relevant applicable law. Such rights and obligations are particularly frequent in family law and employment law”.
[76] The original wording of the para 8: “The provisions of this Directive should apply only to mediation in cross-border disputes, but nothing should prevent Member States from applying such provisions also to internal mediation processes”.
[77] ‘Cross-Border Legal Disputes: Commission Takes Action to Ease Access to Justice’ (European Commission 2011) <https://ec.europa.eu/commission/presscorner/detail/en/IP_11_1432> accessed 1 June 2024.
[78] For example, Article 5(2).
[79] Arlene McCarthy, ‘Report on the Implementation of the Directive on Mediation in the Member States, Its Impact on Mediation and Its Take-up by the Courts’ (Committee on Legal Affairs 2011) <https://www.europarl.europa.eu/doceo/document/A-7-2011-0275_EN.html> accessed 1 June 2024.
[80] Minister of Justice, ‘Public Consultation 1) Bill Entitled: “On Certain Aspects of Mediation in Civil Disputes Amendment Act of 2023 (Act 159(I)/2012)”, and 2) Regulations Entitled: “The Mediation in Civil Disputes Regulations of 2023”’ (14 February 2023) <https://www.mjpo.gov.cy/mjpo/mjpo.nsf/all/96454F41D5D5568DC2258956003A3563?opendocument> accessed 28 April 2024.
[81] Hereinafter UNICTRAL
[82] Hereinafter SCM
[83] Dorcas Quek Anderson, ‘The Singapore Convention on Mediation: Supplying the Missing Piece of the Puzzle for Dispute Resolution’ [2020] Singapore Management University School of Law <https://papers.ssrn.com/abstract=3553739> accessed 9 April 2024, p. 1-2.
[84] Nadja Marie Alexander, ‘Singapore Convention on Mediation’ [2018] Yong Pung How School Of Law <https://papers.ssrn.com/abstract=3330322> accessed 9 April 2024, p. 3.
[85] Erin Alvarez, ‘International Commercial Mediation Update: UNCITRAL Finalizes Convention and Model Law Drafts on International Settlement Agreements Resulting from Mediation’ (The Blog of The CPR Institute, 3 July 2018) <https://blog.cpradr.org/2018/07/03/international-commercial-mediation-update-uncitral-finalizes-convention-and-model-law-drafts-on-international-settlement-agreements-resulting-from-mediation/> accessed 22 June 2024.
[86] Mike Freer, ‘Government Response to the Consultation on the Singapore Convention on Mediation’ (UK Parliament 2023) Statement <https://questions-statements.parliament.uk/written-statements/detail/2023-03-02/HCWS592> accessed 9 April 2024.
[87] Dorcas Quek Anderson, ‘The Singapore Convention on Mediation: Supplying the Missing Piece of the Puzzle for Dispute Resolution’ [2020] Singapore Management University School of Law <https://papers.ssrn.com/abstract=3553739> accessed 9 April 2024, p. 7.
[88] Prerita Bhardwaj, ‘Critical Appraisal of the Singapore Convention on Mediation’ [2022] 3 Jus Corpus Law Journal 967, p. 969-70.
[89] Dorcas Quek Anderson, ‘The Singapore Convention on Mediation: Supplying the Missing Piece of the Puzzle for Dispute Resolution’ [2020] Singapore Management University School of Law <https://papers.ssrn.com/abstract=3553739> accessed 9 April 2024, p. 7.
[90] Stavros Pavlou and Salomi Stavrou, ‘Law Over Borders: Comparative Guides – Mediation in Cyprus’ (Mondaq, 30 January 2024) https://www.mondaq.com/cyprus/trials-appeals-compensation/1641118/law-over-borders-comparative-guides-mediation-cyprus.
[91] The Law Society, Response to the Ministry of Justice’s Consultation on Increasing the Use of Mediation in the Civil Justice System (October 2022) https://www.lawsociety.org.uk/topics/research/mediation-in-the-civil-justice-system-consultation-response
[92] Court of Appeal for Ontario, ‘Access to Justice: Mediation — Panacea or Pariah?’ (Ontario Courts, 2007) https://www.ontariocourts.ca/coa/about-the-court/archives/access/.
[93] ‘Litigation Costs and Refusal to Mediate: When Can the Court Award Indemnity Costs?’ (LEXLAW Solicitors & Barristers, 12 July 2022) https://lexlaw.co.uk/solicitors-london/litigation-costs-refusal-mediation-indemnity-adr-cpr
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