See my previous blog – ‘Evaluating the cost-effectiveness of Commercial Mediation v. Litigation using the Pareto Principle / 80:20 ratio.’
The following is a brief extract from my forthcoming book the 2nd Ed Contentious Probate Handbook (for the Law Society). I have just written these paragraphs. Note the practical insight at the end. This has just occurred to me:
‘Whilst this example is arithmetically simplistic, when you compare the cost-effectiveness of Mediation as a process to litigation, by analogy to the ‘Pareto Principle’ / ‘80:20 rule’, it is self-evident that valuable time and money can be saved by entering into mediation early, instead of marching to war, and possibly mutual self-destruction.
Put another way – if you think of Mediation as being a ‘time planning exercise’, it can generate 92.5 more free/extra time for living a happy life, when compared to litigation, whilst at the same time saving you 92.5% of the cost of resolving a family dispute.
This holds for both parties in the dispute.
So, instead of a ‘double whammy! ‘, the net outcome is a double benefit. That is because you have maximised your net output (i.e. ‘gains’) by minimising your input.(i.e. ‘losses’ – time and money).
What this thought experiment also reveals, is where one party applies at a CMC for mediation to be ordered without the consent of the other, and the judge refuses the application on the ground that – ‘the parties are too far apart!’, then the judge may be successfully appealed.
That is because in mediation, there can never be a scenario in which parties ‘are too far apart’, as time and money can always be saved by entering into mediation early instead of proceeding to trial.
There may of course be other valid reasons for refusing to order mediation, in which case the judge will need to develop and state his reasons. If he fails to do so, then he is likely to be challenged by way of an appeal, if of course that is how the disappointed applicant decides to proceed.’