Comments

This paper can be referenced as [2012] UNSWLRS 47.

Abstract

This paper assesses whether compulsory mediation before commencement of court proceedings has substantial prospects of success in complex commercial litigation. If the answer is in the affirmative, mediation should be compulsory before any action can be brought before the court. If the answer is negative, a requirement to first undertake mediation would be a waste of time and money – and, in effect, be contraproductive to the aim of a quick and cheap dispute resolution.

This paper will also examine the situation in Switzerland, where the parties generally must undertake some attempts of pre-action dispute resolution. Figures show that around 50-75% of the disputes brought before the Swiss 'conciliation authorities' can be resolved at this early stage.

This paper starts with an assessment of the existing obligations of prospective parties with respect to mediation in Australia (below ch. 2). After that, I will set out the legal situation in Switzerland after enactment of the new Swiss Civil Procedure Code of 19 December 2008 (SCPC, SR 272) on 1 January 2011 (ch. 3). After identification of the main factors which are crucial for successful mediation (ch. 4), we will be able to decide whether mediation should be adopted as a prerequisite in complex commercial litigation (ch. 5).

Disciplines

Civil Procedure | Dispute Resolution and Arbitration | Law

Date of this Version

9-30-2012