How many of you have been involved in a mediation of a dispute? Most governance professionals will have had at least some involvement in a dispute, and, therefore, possibly in a mediation session.
These days, most commercial disputes will be referred to a mediation session, either by agreement between the parties, pursuant to the provisions of a dispute resolution clause in a contract, or by mandatory court order, sometimes even if the parties do not agree to refer the dispute to mediation. Some industry platforms provide schemes for referral of disputes to mediation pre-litigation, for example, franchise disputes under the Franchising Code of Conduct, and retail lease disputes under the relevant legislation.
Having acted as a commercial litigation solicitor for over 34 years and also being retained as a mediator to assist parties to resolve disputes for over 20 years, I have participated in a large number of mediation sessions. That has permitted me to ruminate about what makes a mediation session successful. Success is not always determined by whether or not a dispute is completely resolved at mediation. Rather, success should be measured by the progress made between disputants to narrow the issues in dispute and consider possible solutions to resolve those issues. Often disputes are fully resolved very soon after a mediation session, as substantial progress and open communication have set the scene for sensible commercial resolution.