On 6/7/05, Anthere anthere9@yahoo.com wrote:
I would be happy to have a legal person give his opinion here.
In real life, mediation is essentially a choice, not a requirement/obligation. I am a little dubious of the deep underlying significance of being punished for refusing mediation when in conflict. I also fear "refusing cooperation" in mediation would have to be a decision of the mediator... which implies a loss of neutrality... as well as requires a mandatory report of the mediator to the arbcom... possibly fueling a bad relationship between the mediator and the people in conflict. Since the relationship should be first based in confidence, I am perplex of the implications it might result to.
In contract law (at least in Australia, and I think in the United States too) courts will find that parties have a duty to negotiate in good faith. This is somewhat of a nebulous concept, but essentially what it requires is that the parties demonstrate a genuine, honest attempt to negotiate fruitfully with other parties. They aren't required to concede any ground, or act contrary to their interests, just participate honestly.
This would be the obligation facing a party to compulsory mediation, to at least attempt to negotiate an outcome, and at least be open to resolving the dispute.