Stop Gambling and Try Mediation

Why does British industry employ so many people in the field of dispute resolution? The answer is simple. There is a large amount of money to be earned from parties who can be persuaded to try their luck in the casino worlds of litigation, arbitration or adjudication.
But please note, if you are going to try mediation please make sure that your chosen mediator is well trained, experienced and, above all else, truly committed to helping Parties find a solution to their dispute which is one of their own making!
So is Mediation an answer to this problem? I say it can be and I am not on my own. Even the judiciary is in on the act.
Litigation in this country is governed by “Pre-Action Protocols” or rules of engagement to you and me. Within these rules, which came into force as long ago as April 2006, is the following stark warning.
"The Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still being actively explored. Parties are warned that if the protocol is not followed (including this paragraph) then the Court must have regard to such conduct when determining costs".
What this statement is doing is to warn Parties that if they do not try mediation, painful cost orders may be imposed by the Court at the end of a trial. In other words, the courts are sending a clear message that parties would be better advised to try something other than litigation to resolve their differences. That something else is mediation.
Statistics indicate that 80-90% of mediations are successful. Not bad odds when compared with the casino approach.
Let’s face the facts. How many lawyers do you know that can guarantee the outcome of a reference to a legal tribunal? Not many I suspect. I won’t. If thirty years’ experience of dispute resolution has taught me one thing, it is that there can only be one “winner”. There are so many variables that can have a bearing on the outcome of a reference to legal proceedings that I will never do more than speculate on a range of possible outcomes and warn clients that adjudicators, arbitrators and yes, even judges get things wrong from time to time. We have a Court of Appeal and The House of Lords in this country, some would say, to allow parties to spend even more of their money on dispute resolution advisers.
At least in mediation it is the Parties that decide the outcome, on terms they are happy with.
So stop gambling and try mediation!
Peter Vinden

Peter is an experienced professional in the construction industry with particular expertise in quantity surveying and the commercial management of contracting organisations.