The question of voluntary and mandatory ADR including arbitration has been a richly debated topic in many jurisdictions. Since the mid-twentieth century, the question of achieving procedural and substantive justice in the context of judicial dispute resolution has received significant attention beginning with the work of Owen Fiss and Lon Fuller who articulated early insights into the role, forms and limits of adjudication. Fiss argued that the purpose of adjudication is to provide a public forum to enact public values and not a forum for settlement proceedings.¹⁾ Fuller saw alternative processes such as dispute settlement as potentially appropriate in cases where adjudication reached “its limits.”²⁾ This occurred, Fuller argued, when adjudication attempted to resolve what he described as “polycentric” type disputes (such as when there is no clear issue subject to proofs and contentions).³⁾ According to Fuller, mediation or other forms of ADR are commonly directed towards the creation of relevant interpersonal norms rather than the conformity to such norms.⁴⁾ Mediation is especially useful when the parties concerned are locked in a relationship of “heavy interdependence”, such that each is dependent on some form of collaboration with the other.⁵⁾ In general, the facilitation of the mediator can speed the discussion, reduce the likelihood of miscalculation and help parties reach an optimal agreement by adjusting the parties’ divergent valuations.⁶⁾

Recent work has highlighted the growing inefficiencies of civil litigation in economically advanced countries, while at the same time, caution is given to the potential denial of justice through exclusive reliance on extra-judicial procedures⁷⁾ Building on a growing body of empirical cross-jurisdictional research examining ADR reform and policy⁸⁾, recent research has explored initial comparative findings examining the association of judicial voluntary and mandatory mediation structure with perceptions of justice, efficiency and confidence in courts. These findings are of significance to arbitration practitioners since many of the same issues surrounding voluntary and mandatory access may apply to arbitration as well.

Courts in multiple jurisdictions face the challenge of reconciling procedural and substantive justice in designing court mediation programs. How such programs provide opportunities for party directed reconciliation on the one hand, while ensuring access to formal legal channels, remains an area of continued inquiry. In some jurisdictions, mandated programs require initial attempts at mediation, while in others, voluntary programs encourage party-selected participation. Recent research by Shahla Ali has explored comparative empirical findings examining the impact of judicial mediation structure (mandated or voluntary) on perceptions of justice, efficiency and confidence in courts in ten jurisdictions. It does so by investigating whether, and if so how, variation in civil mediation policy as one factor, affects variation in judicial efficiency, confidence in courts, and perceptions of justice. Given the highly contextual nature of court mediation programs, the study highlights achievements, challenges and lessons learned in the implementation of mediation programs for general civil claims.

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