Lord Woolf’s report ‘Access to Justice’ subsequently implemented into the Civil Procedure Rules 1998 (CPR) and the Access to Justice Act 1999 created a change in culture towards litigation. Indeed, in 1998, Lord Irvine of Lairg said in his foreword to the CPR:
“We should see litigation as the last and not the first resort in the attempt to settle a dispute.”
Mediation has a number of advantages over litigation in terms of dispute resolution. Typically, mediation is characterised by the following:-
Speed of resolution
In most cases, mediation can be organised within a matter of weeks and the actual mediation itself is normally concluded within one day.
Lower Costs
The cost of mediation usually just relates to the mediators time for preparation and then conducting the mediation itself. Furthermore, the costs are usually split equally between the parties.
Empowers decision making
Mediation is used so that the parties ultimately determine the settlement. This is particularly helpful in trying to establish a ‘future’ for the parties, which could serve mutual commercial benefit.
Confidential
The process of mediation including the outcome remain confidential between the parties. So long as the parties reach settlement, it is irrelevant as to others opinion on the outcome. In addition, since the outcome remains private, there is no likelihood of negative publicity normally associated with cases that go to court.
Ultimately those coming to the ‘mediation table’ are there because they want to be there, not because they are forced to do so. As a result, there is an implied willingness on both parties to reach settlement. Consequently, success rates at mediation are quite high. In some countries, such as Australia, mediation is mandatory before proceeding to litigation. In the UK, this is not so, although under the Civil Procedure Rules, any party not willing to attempt mediation prior to litigation will not be looked upon favourably under a subsequent court hearing.