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Dispute Resolution Magazine

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This brief comparative analysis of the United States and English approaches to mediation consent raises policy questions about the merits of mandatory mediation. Is England on a better course by requiring consent at the front end of mediation? Will mediation be stronger in the long run when it has a consensual foundation? Arguably, the use of cost sanctions in England's mediation regime makes it close to a mandatory mediation system. For some litigants, participating in mediation will be potentially less costly than arguing that it was not unreasonable to refuse mediation. But despite the mandatory gloss, mediation is still a consensual process in England, both in terms of the front end and the back end. Leaving aside the differences in procedural systems, whether the English model would work in the United States depends in part on how comfortable we are with our system "as is, " as well as the long-term effects of U.S. consent litigation, and English reasonableness litigation, on the integrity of the mediation process.