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It might be better
than going to Court.
The resolution of disputes through courtroom trial or arbitration
trial can be costly in terms of time, disruption, expense and outcome. The trial system imposes significant logistical
demands in terms of the marshalling of witnesses, evidence and legal knowledge for the trial day. The burden of
trial can add to the social, personal and financial fall-outs occassioned by disputes and even success in litigation
can turn out to be a hollow victory.
In 1976 the Chief
Justice of the US convened the Roscoe E. Pound Conference on the Causes of Popular Dissatisfaction
with the Administration of Justice at which Professor
Sander of Harvard Law School advanced the notion of the multi-door courthouse with mediation as one of a number options
on the court menu.
Do our clients share a sense of "popular dissatisfaction" with
the court system? How effective is the court system in actually helping our clients to achieve a satisfactory
outcome?
Mediation is something we presently do subconciously, we mediate between our clients
expectations, those of our opponents and what we foresee as a probable court outcome. We do this as we build a case or
a defence to a stage where we hope to negotiate a settlement.
Should we focus on formal mediation as a better route
to a good settlement?
To make that judgment we need to be informed about mediation and appreciate how mediation
can be used to our clients advantage?
Mediation under
the stewardship of a Mediator offers the real and proven potential of achieving a desireable outcome and
an earlier resolution of legal disputes.
What constitutes success in mediation and what are rates of success, are illusive. While
mediation is not a panacea for all the infirmities of the trial system, it is an alternative we should consider.
Why Mediate? We should mediate if it is in the best interests
of the client to do so. If the case is not suitable for mediation we shouldn't mediate.
The Promise of Mediation Client Centred
- Consensual - Cost effective - Confidential - Collaborative
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