“Mediation? The most expensive sandwiches I’ve ever eaten”

This was the eye-catching title of an evening symposium held at a London UK barristers’ chambers earlier this year.

Anyone facing litigation – whether in business, or private life – is confronted with an awful trilogy: unpredicatable expense, with an uncertain outcome, lasting a period of time that cannot be determined.

Mediation arose because of the increasing failure of the usual channel of resolving civil disputes – the civil justice system.

It was taking too long to get a dispute to the point where it could be resolved by a judge.  The “one size fits all” procedure was unwieldy and expensive.  The interests of the lawyers and their clients were misaligned – the longer a case took, the more it would cost.

Mediation promised a faster, less confrontational, therefore less expensive approach, based on resolution through agreement of the parties.

The major difference in the mediation model is the absence of a neutral person who decides on the parties’ rights.  But at what price do we abandon the conventional focus on rights, as a method of resolving disputes?

Where the parties to a dispute are sophisticated and  motivated to reach agreement, mediation can work well.

But if one party seeks to postpone the day they will be required to pay a judgment, or is belligerent, or where there is pronounced inequality of strength between the parties, mediation, by creating an extra step in the process, in which there is no referee, can hurt the party who may have the stronger case.

Mediation is not appropriate for all disputes, any more than blood-thinners are the best treatment for all ailments. Indeed, in certain cases it is precisely the wrong approach.

The causal link between a healthy economy and a robust judicial system in which disputes can be determined predictably, efficiently and affordably,  is self-evident.   The role of authoritative, neutral person, who decides a dispute on principles of fairness, is the baby that must not be thrown out with the bathwater.

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