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Mark Hansen, a senior writer for the Journal of the American Bar Association refers to Alternative Dispute Resolution (ADR) in the following terms in a recent article: "ADR was designed to encourage faster resolution of cases through out-of-court proceedings that are generally shorter than trials, less formal and less encumbered by complex rules of procedure, especially regarding admissibility of evidence. Arbitration, for instance, is reminiscent of trial in the way it allows each side to make its case to a neutral third party who renders a binding decision that, in effect, resultsin a winner and a loser.

And mediation is a process for the parties to settle a case with the help of a neutral third party.

Mediation starts from the premise that that the parties want to reach some settlement of the dispute."

Parties opting to resolve a business dispute by mediation can expect to meet each other at the first mediation session within three to four weeks of an application, as the formalities are very simple.

If the parties have already agreed to mediate the dispute, the first session could be held even within a few days of an application.

In litigation, this part of the process would involve consultations with the lawyers, filing of plaint and answer, compliance with court formalities, and allowing for the usual delays associated with these activities, the parties will be lucky if the case comes to court within six months to one year. Mark Hansen quotes Jeff Kichaven , a former litigator in Los Angeles who now works full time as a mediator, as saying," The gladiator type of advocacy you see in the courtroom is totally inappropriate in a mediation.

Litigation is the place to make a point. Mediation is the place to make a deal." Mediation is not concerned with finding out who is right and who is wrong.

Therefore there is no need for the parties to take up positions on the issues, and challenge each other's assertions.

The discussions take place like at a business meeting, and are solely aimed at finding a solution to the dispute, in a manner that meets the needs and interests of both parties and preserves their business relationship.

The process is completed very quickly, without the need for interruptions, arguments, and other adversarial tactics.

Mark Hansen also refers to the part that the mediators play in the process as follows: "The mediators help the parties to get what they want from each other. They are like referees in a sports contest.

They can't score points themselves, but they affect the rules, tempo and content of the game."

A mediator follows a problem solving approach to resolve a dispute.

Discussions take place directly between the parties who are fully conversant with the facts of the dispute.

Those who are familiar with the litigation process will be surprised to find how quickly the parties begin to grapple with the crucial issues during mediation when compared to the formalities involved and the snail's pace at which a case proceeds in court.

Mediation brings the parties together unlike the adversarial process which tears them apart; resulting in the parties distancing themselves from each other as the case progresses.

The rules relating to mediation require that the process should be completed in three months. The parties can meet, as often as they like, at their convenience, with the concurrence of the mediator. If there are signs of a settlement, and more time is needed, the process can be extended by a further three months.

The parties can also terminate the mediation after one or two sessions, if it appears that a settlement is not likely. The course of litigation, on the other hand, is always uncertain.

Hearings may spread over several months, as dates must be convenient to the court system.

It will be a long time, before the case is concluded and judgment is delivered. In the event of an appeal, a final decision may take further time.

Mark Hansen sums up his article by quoting another Los Angeles mediator, Lee Jay Berman who says: "Settlements in mediation often leave the parties to disputes more satisfied with the results than the outcomes they might have achieved in litigation.

The parties may say they want their day in court, but when all is said and done , what they really want is their day in mediation."

The Commercial Mediation Centre of Sri Lanka, which is a joint initiative of the Ceylon Chamber of Commerce, Ceylon National Chamber of Industries, Federation of Chambers of Commerce and Industry of Sri Lanka and National Chamber of Commerce of Sri Lanka conducts proceedings to resolve disputes by mediation.

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