University of New South Wales Faculty of Law Research Series
Last Updated: 5 October 2012
Compulsory Mediation as a Prerequisite Before Commencement of Court Proceedings - Useful Requirement to Save Resources or Waste of Time and Money?
Lukas Wiget, University of New South Wales
This paper is available for download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2157385
This article can be referenced as  UNSWLRS 47.
This paper assesses whether compulsory mediation before commencement of court proceedings has substantial prospects of success in complex commercial litigation. If the answer is in the affirmative, mediation should be compulsory before any action can be brought before the court. If the answer is negative, a requirement to first undertake mediation would be a waste of time and money – and, in effect, be contraproductive to the aim of a quick and cheap dispute resolution.This paper will also examine the situation in Switzerland, where the parties generally must undertake some attempts of pre-action dispute resolution.
This paper starts with an assessment of the existing obligations of
prospective parties with respect to mediation in Australia (below
ch. 2). After
that, I will set out the legal situation in Switzerland after enactment of the
new Swiss Civil Procedure Code of 19
December 2008 (SCPC, SR 272) on 1 January
2011 (ch. 3). After identification of the main factors which are crucial for
mediation (ch. 4), we will be able to decide whether mediation should
be adopted as a prerequisite in complex commercial litigation