Originially from: World Arbitration and Mediation Review (WAMR)

Has Mediation Made the Courts Irrelevant?
An Australian Perspective
by
Ian Hanger, QC
[Ian Hanger QC is a barrister who has been in practice since 1968 and is
one of Australia’s leading mediators.]
(This article was presented as a paper to the Australian Bar Association
Conference in Paris, July 2002.)
Introduction
In responding to the question, whether or not mediation has made the courts
irrelevant, I will first discuss why mediation has been so successful, then examine its
disadvantages (perceived or real), before speculating as to its future.
Why has Mediation been Successful?
Depending on which Australian State you were in, during the 1990s, the delay
involved in getting a matter to trial after the interlocutory steps were completed was in the
order of one to three years.
The advent of the photocopier, the fax machine, and the increase in international
business transactions had the unavoidable effect of increasing the cost of commercial
litigation. One may also surmise that, during the same period, costs were increased by the
fear of possible actions for professional negligence. Litigation became and remains an
enormously expensive, and, one may say, luxurious way of obtaining a final determination of
a dispute. It was too slow and too expensive.
Mediation offered a quick solution. It was essentially non-confrontational and offered
a relatively stress-free environment in which to resolve a dispute. It had the advantage of
confidentiality and it encouraged creative solutions not available to the courts. It was
attractive in that it eliminated litigation risk—the risk of something going wrong with one's
case during the course of a trial, the risk of a judge erring, the risk of a long appeal process,
and the risk of recovering a hollow judgment at the end of the day.
Frequently, it even offered what it was so often touted as offering—a win/win
solution.
Finally, it offered flexibility. Each mediation is different. The mediator does not
apply strict rules but adapts the process to the circumstances of the dispute and the
personalities of the people and organisations involved. To me, this flexibility is the key to
mediation’s success.