[WikiEN-l] Re: Compulsory Mediation, Was Arbitration Commitee Seeking Comment

[Stephen Bain]

On 6/7/05, Anthere <anthere9 at 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.

-- 
Stephen Bain
stephen.bain at gmail.com