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Mediation is not the silver bullet. It is consensual. It won’t work where one side holds all or most of the cards and simply wants to win. Let’s have a quick look at how that works in practice. I’ll play the bad guy, hell bent on winning at all costs...

Decent person – “this court business is all too expensive for me but fortunately there is a practical alternative to help us reach an agreement that you should pay me at least some of the money I think I am entitled to. Let’s go and mediate.

Me – Go boil your head.

Decent person – Oh please! I can’t afford to go to court. Can’t we mediate? Everybody says it’s such a good thing.

Me – “have a nice day – loser”.

(Sound of door slamming followed by tears)

Here is the weakness of mediation – of which, don’t get me wrong, I am an advocate – because you can’t, save by some fundamental changes to the principles of our justice system, force it upon people. Some would say that it is akin to trying to negotiate with a terrorist.

Former US president Theodore Roosevelt is famous for the maxim, “speak softly and carry a big stick”. There are no two ways about it – that is the reality of litigation. I am all for speaking softly, nicely, collaboratively - and trying to engineer a solution which is good for everybody involved.

But rarely can it be done without the threat of something more unpleasant if the opposition won’t play ball. It needs a big stick. Problem when all the big sticks are on one side of the table, because nobody on the other side of the table can afford one.