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The second major reason for regarding a mediation option as valuable is the fact that
mediation can produce flexible and constructive outcomes as between the parties
which traditional legal remedies cannot offer.
(a)
Karl Mackie and Eileen Carroll of CEDR put this as follows :-
"The need for an alternative to litigation, arbitration and tribunals is broadly accepted,
particularly because of the problems of time and cost, but also because any adversarial
process leaves wounds, which damage, even destroy, relationships. From another perspective,
litigation, arbitration and tribunals are inherently unsatisfactory as they look back to the past,
and any decision is largely based upon history. In mediation the focus is primarily on the
future and on party interests which are not limited to legal issues but take account of the
commercial needs of both parties."
(b)
In Dunnett v Railtrack plc [2002] 1 WLR
2434 at §14, Lord Woolf MR gave
some examples based on the court's experience :-
"This court has knowledge of cases where intense feelings have arisen, for instance in
relation to clinical negligence claims. But when the parties are brought together on neutral
soil with a skilled mediator to help them resolve their differences, it may very well be that the
mediator is able to achieve a result by which the parties shake hands at the end and feel that
they have gone away having settled the dispute on terms with which they are happy to live.
A mediator may be able to provide solutions which are beyond the powers of the court to
provide. Occasions are known to the court in claims against the police, which can give rise to
as much passion as a claim of this kind where a claimant's precious horses are killed on a
railway line, by which an apology from a very senior police officer is all that the claimant is
really seeking and the money side of the matter falls away."
Mediation also provides the chance of a swifter resolution of the dispute in conditions
of confidentiality and in an atmosphere where the parties are channelled towards
seeking settlement rather than towards inflicting maximum adversarial damage on
each other. It is obviously in the interests of justice to promote cost-effective options
for satisfactory dispute resolution if this can be done in a manner meeting the
substantive objections raised.
Notes
Karl Mackie Chief Executive, CEDR and Eileen Carroll Deputy Chief Executive, CEDR, Regulation
or positive promotion How to foster the art of mediation, March 2003, at www.cedr.co.uk.
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