Mediation Outcomes: Lawyers’ Experience with Mediation

Abstract

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.