Mediation is generally considered as being quicker and more cost efficient than litigation. The slow and overloaded court system means that those wanting to bring a claim to court may wait months, or even years, to resolve their dispute. If both parties are open to trying mediation as a form of ADR, parties can potentially resolve the problem in a matter of weeks. Add to this the avoidance of expensive court fees, as well as solicitor and barrister fees, and mediation becomes an attractive alternative.
All parties must be willing to compromise in order to reach a solution. In doing so, mediation has the potential to reduce hostility, making communication between parties less adversarial and more amicable. A large majority of respondents cited that client input and involvement in the mediation process, could have a very positive impact. This was opposed to court proceedings where unfavourable decisions impacting both parties, may be delivered. Instead, allowing the parties to choose their own process, gave them the opportunity to recognise mutual interests and avoid the risk of an unhelpful court judgement.
Additionally, mediation offers the aggrieved party the opportunity to receive an apology. Something said to be impossible to get from ‘the mouth of a judge’.
Mediation is not a suitable procedure for settling disputes in all cases. Where deliberate, bad-faith counterfeiting or piracy is involved, mediation, which requires the cooperation of both sides, is unlikely to be appropriate. Similarly, where a party is certain that it has a clear-cut case, or where the objective of the parties or one of them is to obtain a neutral opinion on a question of genuine difference, to establish a precedent or to be vindicated publicly on an issue in dispute, mediation may not be the appropriate procedure.
On the other hand, mediation is an attractive alternative where any of the following are important priorities of either or both of the parties:
- minimizing the cost-exposure entailed in settling the dispute;
- the maintenance of control over the dispute-settlement process;
- a speedy settlement;
- the maintenance of confidentiality concerning the dispute;
- or the preservation or development of an underlying business relationship between the parties to the dispute.
The last-mentioned priority, in particular, makes mediation especially suitable where the dispute occurs between parties to a continuing contractual relationship, such as a license, distribution agreement or joint research and development (R&D) contract, since, as mentioned above, mediation provides an opportunity for finding a solution by reference also to business interests and not just to the strict legal rights and obligations of the parties.