Mediation: Why More Litigators Should Be Promoting It

Despite being encouraged under pre-action protocols, mediation remains underutilized by many litigators. This article discusses why that should change and presents the strategic, financial, and reputational advantages mediation can offer to litigators and their clients alike.

Is Mediation Worthwhile?

• It is effective in resolving disputes efficiently?
• Does it deliver cost-effective, collaborative results for clients and legal teams?
• Do many disputes escalate unnecessarily, with legal costs mounting and negotiations stalling?

These questions are discussed below.

What is Mediation?

Mediation is a negotiation process facilitated by a neutral third party (the mediator) who helps the parties in dispute reach a mutually acceptable agreement. Unlike a judge or arbitrator, the mediator does not impose a decision. Instead, the parties retain control over the outcome and if an agreement is reached, it is usually formalised into a binding settlement. If not, the parties are free to continue with litigation or arbitration without any penalty.

Why Litigators Should Embrace Mediation

1. It’s a Revenue Generator, Not a Threat

Contrary to the myth that mediation “cuts lawyers out,” experienced litigators know that their role, as set out below, remains vital throughout the mediation process:

• Advising on the legal merits
• Developing negotiation strategies
• Preparing clients
• Drafting and reviewing settlement terms.

Moreover, as mediations often span full days, with preparatory and follow-up work generating billa-ble hours, lawyers who present themselves as strategic problem-solvers, not just litigators, do enhance client loyalty and open new revenue streams.

2. No Risk of Adverse Costs

One of mediation’s lesser-known advantages is the absence of adverse cost consequences in that even if mediation fails, clients retain all rights to litigate. They are not penalised for making a good-faith effort to resolve the dispute. As such, this makes mediation an ideal “first strike” opportunity to gather intelligence, test positions, and open dialogue before litigation commences.

3. Better, More Creative Outcomes

While litigation tends to deliver winners and losers, in stark contrast, mediation fosters creative, customised solutions that courts cannot easily order, such as revised payment terms, ongoing busi-ness arrangements, apologies, or confidentiality protections. Therefore, helping clients reach meaningful, interest-based outcomes reinforces a litigator’s value as a trusted advisor, not just a courtroom advocate.

Mediation Potentially Delivers Tangible Benefits to Clients

Here are some benefits mediation can offer in dispute scenarios:

• Cost-Efficiency: Mediation typically costs a fraction of litigation.
• Speed: Disputes that might take 12–24 months in court can be resolved in a day.
• Privacy: Mediation is confidential, unlike public court hearings.
• Flexibility: The process and outcome can be tailored to the parties’ needs.
• Relationship Preservation: Particularly valuable in employment, commercial, and family disputes.
• Client Control: Parties shape both the process and the result.

Some Typical Concerns of Litigators and their Clients

Q: What if mediation doesn’t succeed?
A: Parties retain their full legal rights and may proceed to litigation. Discussions during mediation remain confidential.

Q: Is mediation appropriate for complex or technical disputes?
A: Yes. Many mediators have specialist legal or industry knowledge.

Q: Are mediated settlements legally binding?
A: Yes, if properly documented and signed. Courts can enforce such agreements if necessary.

Q: Can mediation help when emotions are high?
A: Definitely. Mediators are trained to manage conflict and create space for constructive dialogue.

Litigators as Leaders in Modern Dispute Resolution

Litigation has its place, but mediation is increasingly recognised as the smarter first step. It enhances client satisfaction, reduces costs, and improves outcomes. As courts are increasingly embracing mediation, forward-thinking litigators should too and by recommending mediation early, litigators position themselves not just as a legal technician, but as solution-oriented advisors delivering efficient, dignified, and effective results.

If you, as a litigator, haven’t tried mediation yet, now is the time. Your clients and your practice will thank you.

About the Author: Dr. Andre Alexander is Chief Registrar at ICDRO – International Court of Dispute Resolution Online, a division of ABS&P International Law Firm. ICDRO provides early neutral evaluation, ADR policy advisory, and expert nomination services across international commercial disputes.

ABOUT THE AUTHOR: Dr Andre Alexander
Dr. Andre Alexander, Barrister, Solicitor, is Chief Registrar at ICDRO – International Court of Dispute Resolution ONLINE, a division of ABS&P International Law Firm. ICDRO provides early neutral evaluation, ADR policy advisory, and expert nomination services across international commercial disputes.

Copyright ABS&P International Law Firm

Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and.how they may affect a case. For specific technical or legal advice on the information provided and related topics, please contact the author.