What difference to litigation does mediation offer?
Laurence Boulle has accurately opined:25
Traditionally dispute resolution processes have had system-maintenance functions: in broad terms they maintain the societal status quo through their functions of compensating, punishing, distributing and restoring.
If this statement is accurate (and I respectfully believe it to be so) then once can well see that “traditional” dispute resolution processes (ie litigious adversarial processes) have significant shortcomings for any relational rather than transactional disputes, whereby parties are in and desire to, or irrespective of desire will, continue in that relationship. It is well recognised26 that the costs of litigation go well beyond financial costs and include emotional expenditure and damage to or even termination of relationships between disputants.
In an opinion piece by the South Africa dispute resolution practice “Mediate Africa” the following is offered:
Alternative Dispute Resolution is an umbrella term for processes, other than judicial determination, in which an impartial third party assists those in a dispute to resolve the issues between them [including mediation].
Mediation…is the most widely used ADR process in Australia, primarily because it is so flexible and so effective.
… where parties participate in the mediation process, they frequently find it empowering relative to litigation. This is because they have more of a sense of “ownership” over both the solution and the process that gets them there…
This perhaps gives some insight into the bases for greater community embrace of mediation over time.
A convenient starting point for considering the differences between litigation and mediation is to identify the perceived failings, in the present day and age, of litigation as a form of dispute resolution. A succinct analysis is contained in the United Kingdom’s Woolf Report:27
[i]t is too expensive in that the costs often exceed the value of the claim; too slow in bringing cases to a conclusion and too unequal: there is a lack of equality between the powerful, wealthy litigant and the under resourced litigant. It is too uncertain: the difficulty of forecasting what litigation will cost and how long it will last induces the fear of the unknown; and it is incomprehensible to many litigants. Above all it is too fragmented in the way it is organised since there is no one with clear overall responsibility for the administration of civil justice; and too adversarial as cases are run by the parties, not by the courts and the rules of court, all too often, are ignored by the parties and not enforced by the court.
In contradistinction Bridge identifies the attractions of mediation over litigation as including:28
- It is usually a far more economical means of dispute resolution…;
- It is fast;
- It is confidential;
- It is almost infinitely flexible;
- Because the parties themselves make the ultimate decision, in most instances the parties perceive both the process and the result to be fair;
- It minimises risk for the parties whether the risk be financial, cultural or risk of any other sort.
An additional area of potential difference is confidentiality. I have described the difference as “potential” as I am conscious of the obligation of full and frank disclosure which applies to all civil litigation. Thus there is potentially a valid argument that anything raised in mediation (or FDR if it is to be differentiated as separate and distinct) could and should be disclosed by the parties in their litigation. Indeed, as regards “information” known to a party already involved in litigation addressing the same subject matter at or preceding mediation the argument is irresistible.
As regards confidentiality Justice Bergin of the Supreme Court of NSW observes:29
A most important tenet of mediation in Australia is that it is confidential. Legislation expressly prohibits parties from adducing evidence of a communication made, or a document prepared, in connection with an attempt to negotiate a settlement. The willingness of parties to voluntarily settle their differences through mediation depends in large part on the confidentiality of the process. If parties fear that their disclosures to mediators or other parties during a mediation may be used against them or published outside the mediation session, it is likely that the use of the process will decline or the process will be weakened by parties manipulating their presentation to ensure that the mediator and/or the other parties are not provided with certain information that might otherwise be pivotal to a settlement being reached at the mediation.
Justice Bergin, in common with most authors on the topic identifies that “mediation is a cost-effective and efficient mechanism for resolving disputes”.
The American Bar Association,30 in directly addressing the benefits of mediation in their public education materials identifies nine such advantages, namely:
You get to decide
The focus is on needs and interests
For a continuing relationship
Mediation deals with feelings
Higher satisfaction
Informality
Faster than going to court Lower cost
Privacy
Of these benefits perhaps those which might most starkly differentiate mediation from litigation are the preservation of relationships and self determination. Whilst the preservation of relationships is often the focus of twenty-first century litigation, especially but not exclusively in addressing family law disputes, less formal and less adversarial court processes31 and objects for the conduct of litigation can only go so far. Despite increasing use and popularity of therapeutic jurisprudence principles, even this cannot preserve a relationship (nor meet the needs of those involved in a dispute) as successfully as the avoidance of litigation altogether through a needs based self- determination of the dispute.
Read more here from Judge Joe Harman
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