The parties then separate and endeavour to reach a negotiated settlement assisted by the mediator. There has been a significant increase in the number of commercial disputes mediated in this way in England following the introduction of the Woolf Reforms in April 1999. It is also becoming increasingly common for mediation clauses to appear in IT contracts. These clauses require the parties to attempt to resolve their differences by mediation before they resort to litigation. Although questions may arise as to whether or not such clauses are strictly enforceable, they do prompt the parties to consider a process which would not necessarily occur to them.
Mediation has a number of advantages.
It leaves the parties in control, because the mediator, unlike a judge, cannot impose a solution on the parties. Additionally, courts can only instruct monies to be paid or force parties to stop doing things, while solutions in mediation are limited only by the imagination of the parties. IT companies can put forward proposals which may in the long run be of benefit to both parties in the dispute. Those involved can ask for an IT expert to mediate as not all judges have the same level of technical expertise. Mediation is also less damaging to a continuing relationship when a dispute arises.