Litigation and also other dispute resolution mechanism are in general costly to settle especially if parties are unable to control the process for resolving their disputes. The costs aspects are highlighted by the now well-known study – Lord Justice Jackson’s Civil Litigation Costs Review.
However parties do have control well before being entrenched in courts or in tribunals, and mediation or conciliation is perceived as an alternative to the contentious litigation and arbitration. However, mediation too can be costly if the ‘Go-Between’ is inexperience or unable to cope with the dynamics of the interaction between the parties and the mediation process can go out of hand, causing delays which invariably incur unnecessary costs.
Ideally, I said ‘ideally’ as it is not an obvious choice for parties, who are faced with impending crisis , to seek help to avoid the problems from turning into a crisis i.e. dispute avoidance. All disputes are ‘crisis’ of some sorts. Crisis may not be avoided e.g. contracts are breached due to no fault of the parties but due to events which the parties have little control over. However disputes can be avoided if parties are prepared to seek innovative solutions that lie before and beyond litigation or alternative dispute resolution (ADR) (e.g. arbitration or mediation/conciliation). There are other variances of ADR which I have not addressed here and which I will not go into as there are many resources available elsewhere on ADR. Also, these ADR approaches or mechanisms deal with disputes resolution not dispute avoidance.