25.1 Introduction

Corporate counsel are well aware of the cost and time involved in litigation or arbitration of commercial disputes. For some types of disputes, there is no realistic alternative, such as where a binding court precedent is required to assist in the resolution of a large number of similar disputes. However: “The rule of law does not require that the entire apparatus of the judicial system be brought to bear upon all disputes, or even upon all disputes about legal rights and obligations.”2 Many disputes are settled on a commercial basis by the disputing parties themselves, or with the assistance of an independent third-party facilitator such as a mediator. The commercial settlement of a dispute in this way may be driven more by the parties’ desire to preserve relationships, or their relative bargaining positions, rather than their legal or contractual rights.