It is a common (mis)conception that litigation and delay go hand in glove. Defendants perceive claimants as averse to settlement because they want to 'costs build'; claimants perceive insurers as averse to settlement because they want to retain their funds as long as possible. Both suggest that delays in the court system are to blame. Neither side really looks at their own part in delay; a settlement paralysis often overwhelms cases because both sides have danced their best negotiation dances, and feel rejection in the air.
Both sides wait for the next 'settlement window' so they can try again without looking over anxious and 'without loss of credibility' but when and how that might arise, and how much adverse effect that delay may have on the claim, no one can predict.
Mediation has always provided a real option in this situation. The proposing party takes the initiative by being constructive, lateral thinking and problem solving, putting his opponent in the position of having to accept or reject it at his peril, and no one loses face. It is a much underused option, but in the brave new litigation world that is soon to arrive, all that might change.
Courts are already sanctioning mediation avoidance with costs penalties (Rolf v De Guerin  EWCA Civ 78). In PGF II SA v OMFS (2012 EWHC 83) the court chastised a party that rejected mediation because not all the expert evidence was in. The court’s rationale was that mediation is there to achieve a saving in costs and compromise can be explored without all the pieces being in the evidential jigsaw – broad brush will do.
The old regime of brushing away mediation with impunity (unless you were unlucky like the successful but costs-deprived litigants in the cases mentioned) is changing fast and will continue to change as courts begin to examine the reasons for a refusal to mediate. More detailed reasons for the refusal will have to be given and the court may revisit those reasons after the case has been resolved. Satellite litigation can be envisaged where mediation is rejected, but the case eventually settles at a much later point.
The dynamics of litigation are also set to change as a result of Jackson. Fixed costs, for instance, will drive claimants to settlement so that they bring a case home on - or ahead of - budget. And where the claimant himself has to meet all or part of his own costs, he will do his level best to make sure that early resolution is achieved. Alternative dispute resolution (ADR) andmediation in particular has a big part to play in that.
One unwelcome outcome of these reforms is the prospect that there may be increasing numbers of disputes in the area of solicitor and own-client costs. Once again ADR has a part to play there in permitting the dispute to be addressed quickly and professionally by sensible and commonsense discussion, rather than by satellite litigation which will do little to enhance the public image of lawyers.
About 80% of matters that come to mediation reach settlement. Given that the matters that come to mediation are the "unsettleables" that is an impressive statistic. It is a powerful tool in the litigator’s armoury. It is about to be an integral part of the litigation picture. It needs to be understood and embraced both for the lawyer’s own competence, and to provide a service to clients that is better than that provided by the competition.
Maurice Nichols is a mediator at Expedite Resolution