Mediation is just one more alternative

Sometimes in alternative dispute resolution (ADR) circles, you find people who are so sold on the idea of ADR methods like mediation, conciliation and arbitration, that they seek to promote such methodologies for all conflicts. Although I'm an ADR practitioner, I regret to disagree.

ADR, of which mediation is one of the possibilities, is an alternative. It is one of the routes available to resolve disputes. It is not the be-all and end-all. I always believe that mediation is a good possibility when there is a genuine dispute. There are times when there is no genuine dispute, for example:

a. when a forger wrongfully utilises a well-known brandname, mediation would not work;

b. when a debtor seeks only to delay the payment of debt without any legitimate grievance, mediation is not suitable;

c. when it is more important to get the principle correct, rather than to find a resolution (for example in public interest litigation), mediation is not appropriate;

d. when it is important to set a precedent and not merely to obtain compensation for one case, mediation will not resolve the underlying issue.

There may be other scenarios which render mediation unsuitable. Fact is, mediation is suitable for many scenarios, but not for all. When considering an appropriate dispute resolution mode, you would do well to speak to a practitioner experienced in both conventional dispute resolution practices (such as litigation) and ADR to get a better grasp of the most appropriate mode of resolution.

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If you have any comments or questions, e-mail me at khenghoe@mycounsel.com.my.