In my experience it is common for people to think of mediation and court based litigation as alternatives. However there is plenty of scope for resolving issues within a case which ultimately ends up in court with a judge deciding.

There are some existing techniques for resolving expert evidence such as hot tubbing, where the experts meet to reach a common position on specialised evidence. Because of the objectivity required of an expert, we may think that the hot tub meeting would be a measured and thoughtful discussion leading to an agreed position. I am confident that some hot tub meetings would have vigourous discussions and strong personal and professional opinions, and certainly some do not reach a consensus.

Another potential for dispute is for disclosure of documents. In New Zealand, the High Court rules encourage parties to reach a common position of relevant documents and agree upon a common bundle for the parties to use at the trial. Again, sensible lawyers will be able to reach agreement, but sometimes these arguments can be driven by fear of getting it wrong, positions caused by client instructions and perhaps the healthy ego of some litigation lawyers.

There are plenty of other interlocutory arguments which would also have the potential for agreement or disagreement. Issues such as a timetable, agreed statements of fact and bundles of documents for legal submissions will often be the subject of dispute.

The use of a High Court associate judge, called a master in many jurisdictions, can often be useful. But my suggestion is that an experienced mediator could add real value to a case which is intended to go to trial, by facilitating agreement of many of the procedural issues. In a large case, the mediator could be involved from a relatively early stage, and facilitate all of the issues which I have outlined. They would not replace the role of the court, but would be a resource in which the parties could engage in a process to save time, money and the risk of costs awards for unnecessary arguments. The latter issue is more significant with numbers of cases where the judges have, and the final costs award, added costs above the standard scale where parties have been unreasonable or taken unnecessary steps in litigation. So by using a mediator as an adjunct to the main case, many of these arguments could be avoided and the case facilitated to an efficient hearing date.

Some forms of litigation, such as judicial review, do not really fit into the mediation model and require a judge to make a decision. But the use of a mediator as an adjunct to facilitate the procedure to get this to trial, could result in better quality procedural decisions, better use of court time and ensuring that the judge has the best possible case to make a decision.

Any mediator with this role would need to have substantial civil litigation experience of course. But I think most judges would be grateful to have such assistance to ensure that the litigation progressed smoothly towards a trial.