WHOSE MEDIATION READINESS ARE WE TALKING ABOUT ANYWAY?

Whether the subject-matter was local government, planning and development, land law, commercial, family or many other disputes where parties have been legally represented, I have been left to wonder why mediation in many instances had not taken place at a much earlier point. 

It may be that being “mediation ready” is often quite different for a party on the one hand and for a party’s legal representative on the other. 

When something goes wrong, parties hasten, as they should, to their legal representatives for advice. They listen to and consider the facts provided by the parties. Further steps follow. Obtaining relevant facts is often time consuming and costly. If there is a cause of action, documents initiating proceedings in an appropriate jurisdiction or other forum (adjudication or arbitration perhaps) are prepared as well as evidence, often complex – again, time consuming and costly. The relief sought is most often opposed. Contractual and legislative time constraints sometimes require quick action, but not always. The matter proceeds to a final hearing or determination attendant with all of the hard work of preparation – need I say it again: time consuming and costly. No party can always be certain of a particular result. 

At some time along that process mediation will often be considered. So far as I can tell, that will be at a time when the legal adviser considers the matter to be “mediation ready”. Often, that point will be reached late, when the parties’ positions are laid bare in the documents, and where a hearing is imminent. The matter proceeds to and is often resolved at mediation. But not always.

There is nothing unusual, wrong or out of place with any of that. It is a common scenario.

Litigation may be necessary eventually, but time, cost and emotion demand early attention to alternatives. The business of a party is not usually that of engaging in disputation. In many instances it is an expensive diversion. 

So the point I want to make is a short one. Parties often know the essential matters in issue when a dispute arises. Generally the issues are factual matters best known to the disputing parties. Mediation is not a legal process and it is not a process which will determine legal positions other than by agreement. Further, mediation is confidential and without prejudice. 

It seems to me appropriate therefore to emphasise that legal advisors should consider at a very early stage that being “mediation ready” from a party’s perspective is an important, if not the important, consideration and that early mediation may open a range of resolution options not available in litigation.