Context of Commercial Mediation
There is a sense of striking historical inevitability about the
opportunities offered by mediation in the Common Law System.
The problems of lack of flexibility, cumbersome procedures, expense
and delays have reappeared regularly over the centuries in England
and Wales. In fundamental terms the same solution still applies
- go outside the existing system. Use of mediation elsewhere in
the world has been most successful in countries which have a legal
system based on the Common Law. Eg USA and Australia.
Mediation is a new development on old principles - outside the
traditional court system. This reflects the same path that saw the
beginning of the Law of Equity, the development of the Commercial
Court, the development of Tribunals, and the growth of Arbitration.
Similarly, the fax machine and Email are new developments on old
principles, to meet modern needs.
It is noticeable that every single reform in English legal procedure
in the last 800 years has been adjudicatory. Why mediation is revolutionary
in the UK (rather than evolutionary) in that it is non-judgmental,
or non-adjudicatory. It puts decision making in the hands of the
disputants. (back to top)
Common Problems resolved using commercial
In Commercial Litigation - Across the industrial world,
the costs and complexity of modern litigation and arbitration have
been fuelled by:
- The high level of delays in bringing cases to trial
- The growth of world trade and therefore a growth in the number
- The intricacies of modern technology
- The masses of documents produced by "discovery" ("papering
the other side to death")
Mediation can in certain (but not all) cases be an answer. (back
For Businesses - Across the industrial world, businesses
have three particular problems with litigation:
- There is uncertainty about legal costs, time delays and unacceptable
- Loss of management time and business opportunities
- Somebody wins/somebody loses, and the adversarial process can
wreck a continuing relationship
Commercial mediation can in certain (but not all) cases meet these
Excessive costs and delay have been identified as the twin enemies
of modern justice, so mediation may be the dagger that kills them
both. Disputants litigate in anger; but experience shows that they
frequently settle in boredom. (back to top)
For Governments - Governments across the industrial world
have three particular objectives vis à vis the provision
- To reduce (or at least "cap") capital and revenue
costs of administering justice
- To relieve court congestion and delays. (i.e. the courts' inability
to handle the increasing volume of work thrown at them)
- To facilitate access to justice
Mediation can in fact help to meet these objectives, but mediation
can never entirely replace the litigation process; it merely supplements
it. It can be regarded as one of the "Appropriate" methods
of Dispute Resolution.
It is commonly accepted that perhaps as much as (if not more than)
90% of commercial litigation matters in England and Wales are settled
before the trial, perhaps even on the court-house steps.
It is not unusual for cases going to commercial mediation to have
a settlement rate of 80% or better.
So if commercial mediation can take 80% or more of cases out of
the traditional English Court System (which in practice settle anyway
before the trial) it will reduce the costs of administering the
courts and speed up the court process for what remains. (back
The need for change - The traditional
ways for resolving business disputes have simply become too cumbersome
for universal use.
Some commentators have claimed that the English legal system is
fast losing touch with the public's view of business reality. By
reaching agreement direct, (by the use of trained and accredited
mediators), disputants can adopt a solution between themselves in
practical common sense terms which reflects business reality.
Practical experience shows that what most litigants want (more
than anything else) is a satisfactory solution of their case, quickly.
But in the conventional system through the litigation process in
the courts, without mediation being involved at all, there is little
chance of resolving litigation quickly. But now ADR/mediation. either
on its own or integrated with the court system, provides such a
framework for a mutually satisfactory solution, without surrender.
Greater use of mediation is likely to have two principal consequences:
- A reduction in the number of cases set down for trial - unclogging
the courts, with consequent benefit
- Greater consumer satisfaction - because they have a commercially
acceptable solution, more quickly, and at less cost
What most litigants want (more than anything else) is a satisfactory
solution of their case. But in the conventional system through the
litigation process in the English courts, there is no way of ending
litigation quickly (short of giving in).
Now mediation outside the court process provides such a framework
for a mutually acceptable solution without surrender. (back