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(b)
The duty to entertain litigation point
The argument that court-annexed mediation should be rejected as interference with the
parties' right to litigate amounts to an argument that the civil justice system should
limit itself to procedures fostering an unbridled adversarial approach to dispute
resolution. Such an argument is not acceptable.
Parties in litigation come to the court to seek a fair and satisfactory resolution of their
dispute. The introduction of court-annexed mediation enables the civil justice system,
in suitable cases, to channel a case to a mediation process as a potentially cost-
effective means of achieving that outcome at an early stage of the proceedings. If,
with the mediator's help, the parties are able to reach a consensual settlement (a
frequent occurrence with mediation schemes elsewhere), it is likely to be a satisfactory
outcome arrived at with substantial costs savings, less delay and without the full
trauma of the traditional litigation process. If such settlement cannot be reached, the
traditional process resumes - often with the issues clarified. It makes little sense to
deprive the civil justice system of such an option simply on the basis of a categorical
assertion in favour of an undiluted adversarial approach.
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