Is mediation a process of ‘law’? A Hart-Ian perspective
Mediation, as a form of dispute resolution, is widely practiced. Nations across the world recognize it as an increasingly appropriate form of dispute resolution. But the existential question remains. Can we rightly ascribe the word ‘law’ to the processes of mediation? This article makes one qual...
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| Format: | Article |
| Language: | English |
| Published: |
Penerbit Universiti Kebangsaan Malaysia
2021
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| Online Access: | http://journalarticle.ukm.my/16684/1/44120-151931-1-PB.pdf http://journalarticle.ukm.my/16684/ https://ejournal.ukm.my/juum/issue/view/1378 |
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| Institution: | Universiti Kebangsaan Malaysia |
| Language: | English |
| Summary: | Mediation, as a form of dispute resolution, is widely practiced. Nations across the world recognize it as an increasingly
appropriate form of dispute resolution. But the existential question remains. Can we rightly ascribe the word ‘law’ to
the processes of mediation? This article makes one qualified proposition. Mediation is an extra-legal process, unless it
is used to realize the law (and justice). This is for two reasons. First, mediation’s processes and mediated outcomes do
not in themselves cause judges’ obeisance and adherence. Mediated settlements must rely on the law of contract for its
validity and efficacy. Second, even if mediation is legislated to form part of our law, it is extra-legal. It does not comport
with the minimum content of natural law in that it does not guarantee the realization of the law and access to justice. If
we are to regard mediation as law, mediation must be used to realize the law and guarantee access to justice. |
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