Mediation is promoted as the way to resolve many disputes. It is flavour of the day and will usually be suggested by the courts as an alternative to litigation. Those that refuse to co-operate could well end up being penalised in costs by the court. Although mediation may well have advantages it also has disadvantages.
The advantages of mediation are that it can be quicker and cheaper than court proceedings, that there is confidentiality in not having a dispute aired in open court, and that consensual agreement is preferable to a settlement forced on the parties.
Mediation does however also have disadvantages. A party with a weak case is likely to argue for mediation in the hope of receiving some offer of settlement. For the party with the strong case not prepared to comprise it, mediation can only mean delay and further cost.
Mediation will always equate with compromise and there can be little reason for a litigant with a compelling case to compromise simply because mediation has been required. Mediation can only succeed where there is room for compromise and is only worthwhile in money claims where a binding order for payment is not required.
Expert Determination is another form of Alternative Dispute Resolution which should be considered in appropriate cases. Where there are technical issues it is particularly appropriate. It should be an inexpensive and relatively straightforward procedure.
The parties to the dispute simply agree to the expert who will be called upon to decide matters and the terms of his appointment. Particular experience of the matter in dispute will usually be a requirement of the expert. The parties will agree beforehand that the decision will be binding upon them and all procedural matters such as costs and confidentiality of the determination.
The experts decision cannot be appealed unless this was agreed beforehand and can only be challenged on limited grounds. These will be where there has been deceit or fraud, proven bias by the expert, or evidence that he has acted unfairly or outside of his jurisdiction. There is case law that even if an expert is wrong on a material fact; the determination is still binding.
Alternative Dispute Resolution, be it by arbitration, mediation, or expert determination can never be a substitute for court proceedings. Many types of cases are just not suitable for ADR. Claims against reluctant payers, applications for injunctions or freezing orders are examples of these. The threat of court proceedings with its costs and the available sanctions will often concentrate a parties mind on settling a claim. A willingness to compromise and accept less than is due is often assumed with an invitation to mediate.
There is a place for mediation in resolving disputes and also a place for expert determination and the various other forms of ADR. Everybody has the right to ask a court to decide an issue and any attempt to distract from this is wrong.