Mediate or Litigate

In the UK the former Lord Chancellor, Lord Falconer, has predicted an explosion of ‘mega-litigation’ in the aftermath of the collapse of Lehman Brothers. Delivering the keynote speech at the Legal Week Litigation Forum in London, Falconer said the demise of the US’s fourth-largest investment bank would be a turning point for credit crunch-related litigation, unlocking a flood of cases.

“There is going to be litigation on a scale that we have not seen before,” he told the conference, predicting the emergence of “a new era” for litigation and dispute resolution.

What does this mean for Australia and litigants? Mediation must considered as not just an option but as a necessity. People will not be able to afford to litigate. It is something some lawyers will resist due to impact on fees but ultimately they will not have any choice.

What it means for mediators is to become skilled in negotiations when both parties are reluctant participators and don’t want to compromise. Increasing the pie of options for resolution will need to be explored. A new type of mediation may emerge. Settlement negotiations at all costs. Litigants simply will have to resolve the dispute or face enormous financial pressure.