In human history, reaching consensus has always been the dominant method of resolving disputes. Even today, only around 2% of all litigation matters reach adjudication, and the courts now encourage ADR which is beginning to have a profound impact on public perceptions and keeping court caseloads to a minimum – any more and the system would likely collapse.

While the Courts are a necessity and have important functions to regulate norms of behaviour, allow structured commerce, give transparency and access to justice, it’s important to note that even our common law development is not chosen by the court but by the parties willing and able to take their matters to conclusion.

Neither option has all the answers, but the trend towards mediation is encouraging. It is a cheaper, quicker process and has the added benefit of certainty for those able to reach agreement. For most parties, it is simply the smarter way to spend their resources.