Back then, defendants were very eager to opt for mediation or arbitration because they knew very well that doing so would actually prolong the inevitable and postpone the hiding that was coming their way.
Plaintiffs and applicants often avoided alternative dispute resolution measures such as mediation and arbitration because they found litigation as the most efficient way towards getting to the judgment or the court order they were looking for.
After 2020 we saw changes in the Court Rules that required matters to be referred for mediation or that mediation at least be considered. By now each and every summons and notice of motion has to be issued along with a written notice that indicates whether the plaintiff or the applicant is in favor of having the matter referred for mediation.
One would expect that the plaintiffs would automatically opt to give written notice that they are opposed to having the matter referred for mediation. This may still be true in our District and Regional Court, but our High Courts have now become notorious for their long waiting lists for pre-trial and trial dates.
Matters may now actually be expedited with the obtaining of a settlement through mediation or an arbitration award by having the matter adjudicated by a jointly appointed arbitrator.
In this day and age we now see Defendants preferring to rather take their chances in Court rather than have their hidings brought to them sooner with an arbitration award or settlement.
Even though Arbitration and Mediation have been cited as cost-effective ways to resolve disputes they have actually become rather expensive. While you don't have to pay for a Judge to adjudicate your matter in Court a Mediator and Arbitrator do charge fees for attending to matters. In these matters parties already have their respective legal representatives to pay. The cost of a Mediator or Arbitrator is often daunting to parties. In claims for payment the Defendant is already unhappy to pay an attorney to delay the matter with a notice of intention to defend and all manners of stalling that he/she may find available. The Defendant would rather not pay the person that may speed up the arrival of a judgment against him/ her.
The above prompts parties to carefully consider that dispute resolution clause when drafting a contract or when considering the institution of legal proceedings.
In my view the agreeing to or refusal of alternative dispute resolution is also a strong indication of the homesty of a litigant's intentions.
