However, where I take issue with Simon is the notion that mediation has brought dramatic savings of time and costs that would otherwise have been expended in court actions or arbitrations. I also take issue with the suggestion that mediation has become "so successful".
It is fair to say that people's attitudes to, and experiences of, mediation have changed over the past few years. Generally speaking, four or five years ago people regarded mediation as an unnecessary expense, since it rarely led to the resolution of the dispute. However, as the courts started to show interest and encouraged parties to mediate, the process became more sophisticated and parties began to consider it a practical way of resolving differences. Particularly in multi-party actions, mediation became (and remains) a favoured way of seeking to resolve disputes. A select band of quality mediators became successful at doing so. People's attitudes changed accordingly.
However, increasingly, parties are becoming disillusioned with the mediation process. It has grown so rapidly and to such an extent that it is now (usually) a different process to that which people were getting used to a couple of years ago. Now parties are spending massive sums simply preparing a case. The role of the mediator has changed, with many becoming involved procedurally, often many months before the mediation, and at great expense. The benefits of this remain to be seen.
One of the weaknesses of mediation is that the parties rarely see each other, and there is little opportunity to test arguments and evidence in a confrontational or adversarial way. Yet the process leading up to the mediation puts forward all of the arguments in a way that is similar to the lead-up to trial. Often, mediation is a damp squib since positions have become so entrenched in the build-up to it that the parties are not prepared to negotiate sensibly, since little happens on the day that causes them to reconsider their positions. In such circumstances, one must ask whether or not mediation is all it is cracked up to be. After all, there are other "friendly" methods of resolving disputes, such as the increasingly popular "early neutral determination", where a non-binding decision is made by a judge or lawyer giving an early view of the merits of the case, or for that matter, expert determination, conciliation or mini-trial.
There are still judges who believe that there are more appropriate ways of resolving disputes
Perhaps the most overlooked method of dispute resolution is the one that everyone used to use prior to mediation. Before mediation became so popular, more than 90% of cases were settled prior to arbitration or trial. Parties would have without-prejudice meetings and would negotiate face to face.
So it is not always true to say that mediation has resolved disputes and brought dramatic savings of time and costs, since many of the cases that have been resolved by mediation would have settled without the need for the expense that mediation entails. And it is not true that all judges now seek to drive the parties to mediation. There are still judges, particularly those in the Technology and Construction Court, who believe that there are other methods more appropriate to resolving cases, particularly early neutral determination.
To quote one TCC judge in a recent matter, "there is no magic in mediation".
Nick Henchie is a partner in the Construction and Engineering Group of Mayer, Brown, Rowe & Maw LLP.