Mandatory mediation: An obstacle to access to justice?

Abstract

The article evaluates the efficacy of mandatory mediation in attaining access to justice, in particular with reference to the resolution of labour disputes in Mozambique and South Africa. First, what is meant by mediation, both voluntary and mandatory, and what is meant by 'access to justice' is ascertained. The advantages and disadvantages of mediation are highlighted. It is argued that mandatory mediation is the antithesis of mediation and that, therefore, it denigrates the process and can ultimately divest it of most, if not all, its advantages. It is concluded that, although mediation can be a quick, efficient and cost-effective means of resolving some disputes, it is not suitable to every dispute. Consequently, mediation should be encouraged, but it should not be made mandatory. Key words: Mandatory mediation; labour disputes; access to justice; ADR; dispute resolution