Mediation is a tremendous opportunity for disputing parties to focus on what really matters to them, and to settle on that basis with the assistance of a third party mediator. Mediation provides a scope for solutions as broad and as wide as the law of contract. Mediation focuses on the parties, not the process, whereas litigation and arbitration tend to focus more on the process than the parties. Mediation provides certainty. Arbitration and litigation can only do this when they have concluded, by which time all the money is spent and it is too late to make changes. Mediation is confidential and almost always worth a try for that reason alone.

Arbitration is private dispute resolution. Unless the parties adopt one of the many sets of institutional arbitral rules (and even if they do), they are free to craft a procedure that suits them. The only “downside” of arbitration, of course, is cost. In litigation the state pays for the system, in arbitration the parties pay for the system.

“Med/arb” is a term often applied to a process whereby a chosen neutral first mediates a dispute and then, to the extent that the dispute does not settle, arbitrates the same dispute. A binding award, according to the terms agreed by the parties, then follows.

It is important to note that most dispute resolution processes are not mutually exclusive. You can mediate a case that is being litigated. You can arbitrate individual or all issues in a case that was commenced as a law suit in court. You can adjudicate while the contract is ongoing, and then if the proper steps are followed, have the case heard on its merits at the end of the project in an arbitration or litigation environment. ADR is contractual, and so the possibilities are almost endless, the timing almost open-ended.

Much will depend upon the type of mediation being conducted. Most mediators look for a brief of pertinent facts including:

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• an outline of the issue from a factual and legal perspective

• any fundamentally relevant documents

• any formal pleadings in the matter

• accurate statements of account

• a brief history and outcome of any previous attempts at settlement or offers exchanged

• perhaps the names and titles of the parties attending

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