Being 'Mediation Ready' early in Arbitration and Litigation

In a recent domestic arbitration each party was represented by an attorney with a high level of competence and common sense. The arbitration concerned a cross-border land development issue. There was an undoubted cause of action but the parties agreed to arbitrate after the dispute arose for two reasons.

The first was to ensure that the dispute was resolved as quickly and as cheaply as possible. The second was to ensure that at an early stage after the commencement of the arbitration the parties would be ‘mediation ready.’

So I was asked to make agreed directions requiring statements of claim and defence to be exchanged within a reasonably short time. A further, longer time for the preparation and exchange of evidence was given by further direction. In that longer period mediation by a mediator (not me) was to occur. Mediation resulted in an agreement resolving the matter.

The statements of claim and defence became the position papers in the mediation. The direction for the exchange of evidence created, in effect, sufficient ‘litigation certainty’ to encourage the parties to resolve the dispute at mediation thus avoiding further significant time and costs.

Arbitration served a legitimate purpose. But arbitration may not always be suitable.

Most mediations I get involved in are in the context of pending litigation. Parties eventually get to a ‘mediation ready’ stage, but at significant cost and time.

Perhaps an overriding duty to dispose of a matter quickly, cheaply and justiciably may encourage a ‘mediation ready’ stage being reached well before a matter is fixed for hearing and without disrupting the arbitration or litigation process.