Lawyers as gatekeepers in commercial mediation

I recently attended the Australasian Law Teacher’s Association Conference (ALTA) hosted by the Victoria University of Wellington, in New Zealand. This is the first of a series of posts about dispute resolution research that was presented at the conference.

Dr Grant MorrisGrant Morris photo

Dr Grant Morris is a Senior Lecturer at the Victoria University of Wellington’s School of Law. Grant’s dispute resolution related
research is in the negotiation and mediation spheres, and is no doubt influenced by his interests in legal history, education and law and literature. In 2013 he published an article “Towards a history of mediation in New Zealand’s legal system” (2013) 24 Australasian Dispute Resolution Journal pp 86-101.

The research project

The work that Grant presented at the ALTA conference is an empirical study jointly funded by LEADR and VUW. The focus is commercial mediation. Grant chose this area of mediation because it is the only truly private mediation market in New Zealand. Other markets (such as family and employment law mediation) are controlled by the state through statutory or funding regimes. That control influences whether and how mediators, lawyers and parties engage with the process and one another.

The question that inspired part two of Grant’s four stage empirical study is whether commercial mediators are right when they perceive lawyers to be a barrier to mediation. Grant took this anecdote and his research tested it with empirical evidence. The project is being rolled out in four stages, gathering data from mediators, lawyers, parties (actual and potential) and the courts. Grant presented his findings from his survey and interviews of commercial mediators at the 2015 ‘kon gres in Auckland and presented his report to the Wellington Chapter of the Resolution Institute.

Findings from commercial lawyers

Grant’s ALTA presentation focused upon the findings from his surveys and follow up interviews of commercial lawyers in New Zealand. The report from this stage of the study was published in June 2016. He summarised his conclusions:

  • Commercial lawyers know about mediation;
  • Commercial lawyers are generally supportive of mediation, but on their own terms;
  • Commercial lawyers do not support the idea of mandatory mediation (New Zealand courts do not have power to order litigating parties to attend mediation in commercial matters);
  • Commercial lawyers have an overwhelming belief that they are contributing positively to the process and do not undermine mediation;
  • Clients are believed to have limited knowledge about mediation and to rely upon their lawyers’ recommendations;
  • Commercial lawyers have a gatekeeper role in relation to commercial mediation;
  • The main reason for commercial lawyers recommending mediation is that they believe it is cheaper than litigation;
  • Commercial lawyers have a preference for legally trained mediators with experience and reputation as lawyers (they should understand basic legal principles and how commerce works);
  • Commercial lawyers report high mediation settlement rates and high overall quality of mediators; and
  • Commercial lawyers are generally happy with the standard of commercial mediators in New Zealand.

By comparison, the mediators who were interviewed for the study had different views of lawyers depending upon whether they were “in demand” or struggling to find commercial mediation work. In demand mediators were generally happy with the market, whereas those struggling to secure work were unhappy.

The next stage of the research project

Part 3 of the project will involve a survey of users and potential users. The data from lawyers reveals the potential for better party knowledge about commercial mediation. At the moment, it appears that many parties only know what their lawyer has told them about commercial mediation. The user voice is of obvious significance in building a picture of the commercial mediation market.

Grant was asked how he will be recruiting clients and potential clients to participate in part 3 of his project. Recruitment of users to empirical dispute resolution research is often challenging. Grant is in the process of deciding upon the best way to engage users and plans to focus first on the in house context. In house lawyers are both lawyers and users, so this may be a useful first step in obtaining user views.

Grant will be making another presentation in relation to his project at the DR Research Forum at the National Mediation Conference on the Gold Coast on Thursday 15th September 2016.

 

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About Dr Olivia Rundle

Dr Rundle is a senior lecturer at the Faculty of Law, University of Tasmania. She has worked as a nationally accredited mediator and a Family Dispute Resolution Practitioner. Dr Rundle is especially interested in the role of lawyers in dispute resolution processes and the policy environment that positively encourages lawyers to engage with dispute resolution. She teaches and researches in broad areas of Dispute Resolution, Civil Procedure and Family Law.

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