• Commercial Lawyers' Attitudes and Experience with Mediation

      Brooker, Penny; Lavers, Anthony (Web Journal of Current Legal Issues, 2002)
      This paper considers the application of mediation for commercial disputes following the introduction of the Civil Procedure Rules (CPR), which encouraged the use of alternative dispute resolution (ADR). A report is given on a survey of lawyers practising in the UK commercial litigation field and the respondents' experience of using ADR. An analysis is made of the settlement outcomes reported for mediation and respondents' attitudes to the appropriate use of ADR for commercial-related disputes. Mediation, practically to the exclusion of any other method of ADR, is being employed in some sectors of commercial work and survey respondents are repeat-users of the process. The majority of mediations reported concerned breach of contract and professional negligence cases. Data suggests that the specific categorisation of a commercial disputes as (say) professional negligence, personal injury or breach of contact is unlikely to affect mediation achieving full settlement. Commercial respondents were of the opinion that mediation is suitable for a wide variety of commercial case-types but breach of contract, professional negligence, general negligence and debt cases were specifically perceived to be appropriate. Commercial respondents reported that the major determinants for mediation reaching a successful outcome are the attitude and expectation of the parties in taking part in good faith and their willingness to compromise.
    • Mediation Outcomes: Lawyers’ Experience with Mediation

      Brooker, Penny; Lavers, Anthony (Pepperdine University School of Law, Malibu, CA, 2005)
      This paper reports on the final phase of a three-year study into the role of lawyers in the development of Alternative Dispute Resolution (ADR) following the implementation of the Civil Procedure Rules in 1999 and draws comparisons between US and Canadian studies. The paper centres on the use of mediation, which is recognised as the pre-eminent ADR process in the UK. Data are analysed from 30 interviews with specialist commercial and construction-related lawyers who have utilised mediation in the dispute resolution process. Interviewees were selected from respondents to a national survey of lawyers specialising in commercial and construction-related practice. Whereas reaching settlement is typically regarded as the measure of success, this research focuses on other "mediation outcomes" experienced by solicitors and barristers, the majority of whom are repeat-users of the process. The data reveal that achieving settlement in a timely and cost-effective manner is among the chief advantages mediation has over litigation, but a number of other benefits can make the process an eligible option in dispute resolution. In particular, the process of mediation allows the parties to focus on or narrow the issues in dispute. Lawyer-interviewees also report tactical advantages from engaging in mediation. These range from providing the opportunity to examine the strengths and weaknesses of the case to testing witnesses and evidence. The data suggest lawyers are developing new practices in mediation, such as proposing the process in order to provide proof to the courts of willingness to compromise or participating in mediation in order to send messages to the opposition. Mediator-interviewees report a trend in mediation where cases are more difficult to settle and the participants more cognisant of mediation tactics.