By the same token, what are the downsides inherent in making ADR a compulsory prerequisite for litigation? Compulsory mediation as part of the litigation process in the continuum from dispute to judgment will lead to consequences which may not be beneficial. If mediation is not entered into with full knowledge and good faith by both parties, then it can become a barrier to justice and a stage to go through rather than a holistic alternative to costly litigation. It is more useful to consider mediation as a parallel process than a hurdle to be overcome in order to move to litigation. A sensible and effective process which will lead in the main to a settlement at lower cost and higher efficiency is clearly attractive to parties in dispute. However, if that process is misunderstood or abused in any way then it will be a barrier to justice. The major downsides of compulsory mediation are: i. Not all cases are appropriate for mediation. There is strong evidence that the majority are, but there will be exceptions where a ruling or precedent may be desirable. ii. Compulsory mediation may restrict development of common law. iii.An opt-out process for those cases which are not appropriate for mediation would need to be transparent and robust. iv.Parties can be forced to the table, but they cannot be forced to agree. If one party is reluctant then agreement is unlikely. v. Standards of mediation, although trained and maintained by appropriate regulatory bodies, are not formally part of the court process and proper consideration must be given to how to maintain and sustain them. vi.Power balance between parties can be a consideration, especially where there is more value in a settlement for one party rather than another. What other benefits might arise from adopting mandatory mediation prior to litigation? Mediation is a confidential process save for those rare exceptions where the law requires disclosure. This is vitally important in any dispute which may involve the need to maintain an ongoing relationship between parties, or where reputation is clearly at stake. Compulsory mediation in isolation is unlikely to be a complete answer to a dispute if the conflict calls for a ruling or judgment, or to allow for the progression of the common law. However, mediation will remove the burden on the courts and thus allow the focusing of court resources towards those cases which either cannot or do not resolve for whatever reason. The line between robust encouragement of mediation and compulsion has eroded and will continue to do so. Bringing parties to the table brings a benefit with significant societal value and secures solutions which can go beyond those available through litigation. A court will typically judge a ‘win or lose’, and the solution is in the main a monetary one. Mediation can and does go beyond that and provides for more creative solutions. This can include maintenance of a relationship, an apology, an offer to provide different or continued service as part of the agreement, or simply for a party to feel that they have aired their grievance to the other party. Transformative mediation seeks to change the relationship between parties – courts do not do that. Monetary settlements are part of this, but as Winston Churchill said, “The best evidence of the fairness of any settlement is the fact that it fully satisfies neither party”. The benefit to any party in dispute to sleep soundly at night, get on with life both personally and professionally and remove the stress of a court appearance cannot be underestimated, and should be counted alongside cost concerns as a major benefit of the process. 68 LAWYERMONTHLY SEPTEMBER 2022
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