Mediation remains an increasingly attractive form of dispute resolution for businesses – what would you say are the main driving factors behind this trend?

Alan Limbury: While judges, politicians and litigation lawyers tend to value mediation for its speed, confidentiality and efficiency in achieving “settlement”, businesses, for which disputes are a regular by-product of doing business, increasingly recognise the value of mediation as a way to explore creative solutions that lead to “resolution”. By this I mean an outcome that:

• meets the underlying interests of the disputants (rather than the positions over which the law encourages them to fight);
• supports the restoration of relationships where appropriate; and
• may be achieved early in the dispute because it is unnecessary to complete the pretrial processes before the
• dispute is considered “ripe” for mediation.
• Indeed, with advice from mediation-savvy lawyers, even businesses not accustomed to handling disputes are discovering this attraction of mediation.

 

Allan Stitt: Business people aren’t in business to fight lawsuits. They’re in business to provide products or services, and to make money in the process. And never does the business plan treat costs spent on unpredictable litigation as positive. So business people want to resolve their conflicts if they can do so on a reasonable basis.

Mediations produce settlements when parties can look at arguments, assess risks, and make decisions that factor in the benefits of avoiding the risks. Business people are used to that. They assess risks every day and see the benefit of focusing on making profits rather than focusing on proving that they are “right”. So business people increasingly see mediation as a way to resolve disputes and stay focused on what they do best.

 

Allan Stitt: There are a number of sectors that have seen significant growth in mediation over the past decade. One of the big growth areas is estate disputes.

Resolving conflict around the interpretation of wills is often contentious, emotional and costly. One of the challenges is that, because costs of litigation are often paid by the estate, those fighting sometimes don’t feel as though the process is costing them anything. And family fights are often personal.

A skilled mediator can help feuding family members see that the costs are real, and that there are benefits to putting the grievances behind them and moving forward with their lives. The mediator can help family members see that they don’t have to agree to be best friends, but that they can agree to move forward in ways that make sense for everyone

A skilled mediator can help feuding family members see that the costs are real, and that there are benefits to putting the grievances behind them and moving forward with their lives. The mediator can help family members see that they don’t have to agree to be best friends, but that they can agree to move forward in ways that make sense for everyone

 

Rosemary Jackson QC: Parties, and more particularly, their lawyers, are becoming so experienced at mediation that they begin to use it as a tool, rather than a means of achieving settlement. Unwillingness to engage in any negotiation at all sometimes results from the need to go away and digest information learnt at the mediation, but sometimes it seems as though a party attended solely to gather information, without any intention of trying to reach settlement.

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