Why try to compare litigation with mediation when they do different things? We have mediation because we can't afford to find out what the truth is
It's that time of the year again. The folk who will soon be top dogs in the construction and civil engineering business, in charge of sorting out its contractual demands and its disputes, are asking for help with their university dissertations. These are the youngsters who are up and coming. They write to me for help with a thesis. Will I fill in a questionnaire or three? But I tell you what is plain: these bright young things have already been got at. They hardly ever come with an open mind; they have a kit full of preconceived ideas. Here is one such. It is a favourite dissertation topic: the idea is to compare mediation with litigation.

Dear Mr Bingham, how much cheaper is it to resolve a dispute by mediation? Dear Mr Bingham, how much faster is it to resolve a dispute by mediation than litigation? Dear Mr Bingham, what proportion of disputes are resolved by mediation compared with litigation? The questions are loaded. The students have read up on litigation and its costs, and mediation and its wizardry. The authors of many a good textbook on mediation techniques have told us how bad litigation is and how good mediation is. The students' questions almost always give the game away. Invariably the question starts with a premise: mediation resolves disputes faster, cheaper, sooner. So, tell me by how much is it better at resolving disputes? That's when I baulk. Who says mediation resolves disputes? It damn well doesn't. It works ever so well at getting rid of disputes, but don't you go telling me it resolves them.

The student asks: "Give an indication of the cost of mediation in resolving construction disputes in comparison with arbitration and litigation." I can't. Honest, I can't. Look, let me give the game away. When I am the mediator I use the cost of litigation as a part of my mediator's weaponry. Remember, I am here to coax the disputing parties to find a different way of ending the dispute. I focus their minds on the money, time and hassle of litigation. I depress them. I get them to tell each other how much the legal costs will be if this dispute goes all the way to trial and judgment. We fathom figures. That's what will be spent for a resolution.

We don’t decide rights at all. We don’t resolve entitlements at all. We just get fed up with the prospect of fighting all the way to a resolution

So, if you want to know your rights under the contract, there's the money at risk. To get a resolution is to get an impartial, imposed and binding decision about the facts, allegations, evidence and law by a judge or arbitrator. Now comes the selling point. The mediator says that if, instead of a resolution, you are attracted to getting rid of the dispute, then give up the idea of seeking a decision about your rights under the contract. The punchline is rather like a good joke, taking the brain by surprise: abandon your legal rights – embrace commercial convenience instead.