ACTIONS OF THE PARTIES TO A CIVIL DISPUTE IN CASE OF MANDATORY MEDIATION: ANALYSIS OF THE U.S. EXPERIENCE

Abstract

In case of compulsory mediation, the court has to assess the actions of the parties before and (or) during the mediation session. The U.S. experience demonstrates the difficulty in setting any common criteria. The USA judicial system has not yet managed to resolve the issue. The requirement of good faith participation in mediation is enshrined in the U.S. legislation and local court rules. The requirement is intended to encourage the parties to exclude abuses during the procedure provided they participate unwillingly. However, since there is no legal definition of good faith, it has not been determined at the level of case law. The doctrine contains different points of view. Jurisprudence sets forth the following prerequisites of good faith participation: the presence of written explanations on the merits of the dispute submitted by the parties to the mediator in advance, the appearance at the mediation session and the participation of a representative who has sufficient authority to discuss and conclude an agreement. The judges assess the participation in several mediation sessions and continuance of the session independently. There are cases when the American judges qualified unilateral refusal of the party to participate in mediation as a basis for imposing sanctions. According to most legal scholars, the requirement of good faith participation inhibits the mediation procedure, as the relationship between the parties to the mediation is distorted. The adversarial principle is strengthened, which contradicts the nature of mediation. There is an implicit coercion of the parties to conclude an agreement. It gives an opportunity for additional judicial proceedings concerning responsibility for improper behavior during mediation. Thus, the conflict with the principle of confidentiality of the procedure is inevitable.