It is no secret that court cases can be lengthy, expensive affairs. Much as lawyers do try to keep costs down for their clients, final totals can be large. Also, with pressures on court time constantly increasing, many people end up waiting months – if not years – for their day in court.
For these reasons, mediation can be a sensible alternative to litigation. By agreeing to mediate, parties are keeping the decision-making to themselves, without handing that power over to a judge or jury. Mediation can be a quick, effective solution.
Many people feel concerned that mediation will be stressful. However, professional mediators are extremely skilled at dealing with people in difficult situations. Parties can be kept separate for as long as necessary. No-one is ever coerced into making a decision.
There has been much discussion among those in the legal world over whether it is appropriate to insist that parties undertake mediation before using the court system. In the 2009 Scottish Civil Courts Review by Lord Gill, one of Scotland’s leading judges, this question was considered in some detail. The consensus seems to be that parties should be encouraged to mediate, but not forced to do so. It is fair to say that mediation is not appropriate in every circumstance, but where it is it makes sense to encourage parties to investigate it as an alternative.
Of course, it is difficult simply to “encourage” people. On the basis that mediation can be a positive experience, courts and solicitors should be strongly encouraging parties to mediate. One way to ensure this happens could be to put in place measures requiring parties to confirm that they have given serious consideration to mediation, prior to initiating or continuing with court actions. This would be relatively straightforward to introduce and would hopefully result in more people reaping the benefits of a sensible alternative to litigation.