Lawyer Monthly - February 2022

26 WWW.LAWYER-MONTHLY.COM | FEB 2022 COMPULSORY MEDIATION: IS THERE AN UPSIDE? documents. Furthermore, in complex, highvalue cases, parties may not feel equipped to mediate until after factual or even expert evidence. Certain types of disputes are also less well suited to mediation, particularly those in which a monetary remedy is not sought, such as applications for declaratory relief where parties need the clarification which only a judgment or award can provide. Furthermore, where a dispute involves a long outstanding debt, then the debtor may simply see mediation as a way further to delay judgment against it. In addition, multi-party cases may be more difficult to mediate, as there may well be “sidebar” disputes between the defendants as to which is likely to be found liable and for what proportion. Finally, if mediation fails, then it has merely added an extra layer of cost to the dispute. For very small disputes in the courts, where there may be provision of “fixed fee” mediation, and where recovery of costs may be limited in any event, this is not likely to be a significant consideration. In very high-value cases, the cost of mediation may be a fraction of the overall costs of fighting a dispute to the end, so that it would be worth the risk of additional costs. However, in “medium-sized” cases, particularly where the contract makes mediation a mandatory precursor to commencing proceedings but does not include a pre-agreed mediation process, mediation costs might end up representing a significant percentage of the total costs if the parties become enmeshed in “satellite litigation” over the choice of mediator or the details of the mediation agreement and end up producing lengthy “mediation statements” which are nearly as detailed as pleadings, but still fail to settle. Conclusion There are clear potential advantages of mediation in many cases, whether litigation or arbitration. However, as regards litigation, civil lawsuits are not all the same and a “one size fits all” approach that requires all litigants to engage in a particular form of mediation at a specific point in the procedural timetable, or as a condition precedent to commencing proceedings, is unlikely to work in practice. As regards arbitration, where both the arbitration itself and any precursor mediation must be a matter of party consent, parties should consider carefully whether they want to make mediation a pre-condition to arbitration and, if so, whether for all types of contract or only some. If they do choose to include mandatory mediation then careful drafting is needed to avoid both costly disputes over whether the dispute resolution clause is valid or whether mediation is or is not mandatory, and to minimise later “satellite disputes” over the mediation process. Pillsbury Winthrop Shaw Pittman LLP is an international law firm with a particular focus on the technology & media, energy, financial, and real estate & construction sectors. Recognised as one of the most innovative law firms by Financial Times and one of the top firms for client service by BTI Consulting, Pillsbury and its lawyers are highly regarded for their forwardthinking approach, their enthusiasm for collaborating across disciplines and their authoritative commercial awareness. Mediation only succeeds if there is a genuine attempt to settle on both sides.

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