Context of Commercial Mediation

• Common problems resolved using commercial mediation
• The need for change

There is a sense of striking historical inevitability about the opportunities offered by mediation in the Common Law System.

The problems of lack of flexibility, cumbersome procedures, expense and delays have reappeared regularly over the centuries in England and Wales. In fundamental terms the same solution still applies - go outside the existing system. Use of mediation elsewhere in the world has been most successful in countries which have a legal system based on the Common Law. Eg USA and Australia.

Mediation is a new development on old principles - outside the traditional court system. This reflects the same path that saw the beginning of the Law of Equity, the development of the Commercial Court, the development of Tribunals, and the growth of Arbitration. Similarly, the fax machine and Email are new developments on old principles, to meet modern needs.

It is noticeable that every single reform in English legal procedure in the last 800 years has been adjudicatory. Why mediation is revolutionary in the UK (rather than evolutionary) in that it is non-judgmental, or non-adjudicatory. It puts decision making in the hands of the disputants. (back to top)

Common Problems resolved using commercial mediation

In Commercial Litigation - Across the industrial world, the costs and complexity of modern litigation and arbitration have been fuelled by:

• The high level of delays in bringing cases to trial
• The growth of world trade and therefore a growth in the number of disputes
• The intricacies of modern technology
• The masses of documents produced by "discovery" ("papering the other side to death")

Mediation can in certain (but not all) cases be an answer. (back to top)

For Businesses - Across the industrial world, businesses have three particular problems with litigation:

• There is uncertainty about legal costs, time delays and unacceptable result
• Loss of management time and business opportunities
• Somebody wins/somebody loses, and the adversarial process can wreck a continuing relationship
  

Commercial mediation can in certain (but not all) cases meet these problems.

Excessive costs and delay have been identified as the twin enemies of modern justice, so mediation may be the dagger that kills them both. Disputants litigate in anger; but experience shows that they frequently settle in boredom. (back to top)

For Governments - Governments across the industrial world have three particular objectives vis à vis the provision of justice:

• To reduce (or at least "cap") capital and revenue costs of administering justice
• To relieve court congestion and delays. (i.e. the courts' inability to handle the increasing volume of work thrown at them)
• To facilitate access to justice

Mediation can in fact help to meet these objectives, but mediation can never entirely replace the litigation process; it merely supplements it. It can be regarded as one of the "Appropriate" methods of Dispute Resolution.

It is commonly accepted that perhaps as much as (if not more than) 90% of commercial litigation matters in England and Wales are settled before the trial, perhaps even on the court-house steps.

It is not unusual for cases going to commercial mediation to have a settlement rate of 80% or better.

So if commercial mediation can take 80% or more of cases out of the traditional English Court System (which in practice settle anyway before the trial) it will reduce the costs of administering the courts and speed up the court process for what remains. (back to top)

The need for change - The traditional ways for resolving business disputes have simply become too cumbersome for universal use.

Some commentators have claimed that the English legal system is fast losing touch with the public's view of business reality. By reaching agreement direct, (by the use of trained and accredited mediators), disputants can adopt a solution between themselves in practical common sense terms which reflects business reality.

Practical experience shows that what most litigants want (more than anything else) is a satisfactory solution of their case, quickly. But in the conventional system through the litigation process in the courts, without mediation being involved at all, there is little chance of resolving litigation quickly. But now ADR/mediation. either on its own or integrated with the court system, provides such a framework for a mutually satisfactory solution, without surrender.

Greater use of mediation is likely to have two principal consequences:

• A reduction in the number of cases set down for trial - unclogging the courts, with consequent benefit
• Greater consumer satisfaction - because they have a commercially acceptable solution, more quickly, and at less cost
  

What most litigants want (more than anything else) is a satisfactory solution of their case. But in the conventional system through the litigation process in the English courts, there is no way of ending litigation quickly (short of giving in).

Now mediation outside the court process provides such a framework for a mutually acceptable solution without surrender. (back to top)