Concentus considers whether all cases are suitable for
mediation?
Lord Neuberger has said that mediation is not an alternative but an adjunct to litigation. Do I agree?
To my mind mediation is an essential aspect of litigation and a route that parties should try. It is not an inferior or weaker process, simply an alternative process to litigation to resolving a dispute. It can be considered as a stand alone process or a process within the litigation process.
Most cases are suitable for mediation, the question for most cases is when should mediation happen. The process is aimed at offering a quicker and more cost effective resolution of a dispute, avoiding what can be substantial trial costs and significant emotional turmoil and stress. But the timing of mediation is important as it needs to be sufficiently early to justify the costs savings of the exercise, but not too early so that the parties have had chance communicated the merits of their case with supporting evidence.
It is clear that mediation should
always be considered where, the costs of the litigation will be disproportionate to the claim; the complexities of law and/or fact are likely to protract proceedings; the parties are already deadlocked in settlement negotiations; the issues involved are sensitive or require the disclosure of sensitive evidence and the parties wish to retain anonymity; the parties want to be able to drive settlement to suit their personal circumstances and/or businesses and an imposed court order will not suit either party.
Where one party is suggesting mediation, the other party must give serious consideration to this proposal. A party who is unwilling to participate in mediation is likely to face significant costs consequences and penalties, even if they proceed to trial and win their case.
Mediation allows a more cost effective and flexible approach to dispute resolution which litigation does not. Your choice of mediator is crucial to whether the day is as effective as it can be. The suitablility of the mediator to your dispute is an important decision. Make sure you choose the right mediator for the right dispute. It is not a case of one size fits all!
