By Susan Freeman-Greene

(Published in NZ Lawyer June 2001)

Neither the concept nor the practice of mediation is new. Throughout history third parties have engaged in assisting others resolve their disputes.

By Susan Freeman-Greene

(Published in NZ Lawyer June 2001)

Neither the concept nor the practice of mediation is new. Throughout history third parties have engaged in assisting others resolve their disputes.

Over the last few decades what is loosely called the ADR (alternative dispute resolution) movement has, with different degrees of evangelical fervour, tried to convince us that mediation is The Way: sort out what both sides really need as opposed to what they demand, mesh these interests and you’re there. Everyone’s happy. Extravagant claims have been made and countless clichés spawned: ‘win/win’, ‘expand the pie’, and ‘separate people from the problem’ to name a few.

But leaving aside the hype, the logic of the mediation rhetoric is persuasive: it’s future oriented; it saves time and resources; it preserves and sometimes restores relationships (commercial and personal); its participants recount satisfaction; it generates a high settlement rate and it allows people to move past the paralysis of conflict. And today’s practitioners, while more cautious with the hyperbole, consistently report that mediation does deliver – on many of these fronts.

Yet, until recently, the take up rate and even interest has been relatively low. Not least within the legal profession. What, if anything, is changing that?

First, there are signs that more lawyers are showing greater awareness of mediation and ADR; that they recognise the value they can add to the process and that they see that mediation is another way to provide a service to their clients. LEADR NZ is seeing support for this with an increasing number of enquiries from lawyers who want to learn more about mediation: what it is, how to use it and how to prepare and participate in it – as representatives, not mediators.

So what is changing?

The growing focus on the business of law is having a significant impact. As with many professions, the comfort of the professional framework has eroded. Competition is growing: this years Continuing Legal Education programme contains a marketing module; the Legal Professions Bill encourages deregulation and envisages open multi-disciplined business structures. Notions of professional responsibility are evolving and lawyers have to look further for effective, efficient ways to service their clients. Clients in turn, (driven in part by cynicism), have higher expectations and greater awareness of the options.

Pressure is coming from above too. Case management direction and increasing judicial support for appropriate application of ADR substantiates this. Further, the government has just announced massive increases in fees for court hearings. A quick calculation shows that a two-day hearing in the High Court could cost up to $7000 in disbursements alone – leaving aside legal fees.

Add to these factors growing legislative and institutional backing of the principles and process (with the Employment Relations Act 2000 as a recent visible example) and we have an environment where mediation simply cannot be ignored.

Having said that, openness to mediation is just a start. Many lawyers are resistant on a number of reasonable pretexts.

One problem is that mediation seems conceptually difficult to rationalise within the context of our legal system. It involves including a subjective self-determinative process within a structure that has developed on the premise that fairness (and justice) is best served by objectively ensuring protection of established rights in the even-handed way that ‘due process’ satisfies. Yet, advocates of mediation will tell you that they have not been well served by the ‘alternative’ label, that mediation does not work in isolation and that a realistic assessment of exactly what the legal position is central to successful mediation. And resort to the law always remains an option.

Another barrier is that the legal route provides a natural response to those in conflict – it allows both the fight (through litigation) and avoidance (via a representative). So on its face, lawyers who respond to an aggrieved client by reflexively commencing litigation proceedings on the strength of a package of rights – are doing exactly what the client has demanded. It takes a sophisticated understanding of conflict to look beyond that to ‘interests’ and an appreciation of the landscape of dispute resolution to handle it differently – at any stage.

Of course, another hurdle is that it is simply not that easy to find the interests under the positions. It takes skill. Even experienced mediators can be vexed by what seems a single issue involving the division of a simple resource. Yet time and time again mediators find that demands and positions mask interests that can be accommodated in some other way. So often a demand for money may be more about recognition of status or acknowledgement of damage than the money itself.

Mediation works on a number of levels. Essentially, it creates doubt - both in ones own position and the certainty that the other side is wrong. Black and white shifts to grey. It does this through widening the scope of the discussion beyond legal issues, by giving voice to the parties and by clarifying perceptions and misunderstandings. Mediation does not presume to sort out relationships but the opportunity to address them frequently sets the platform for movement on the substance of the dispute. Mediation can be bruising – but it gives those who know most about their dispute the chance to work it out in a way they can live with. That is worth a go.

Some lawyers resist mediation sensing it means losing control – both of the process and the client. They are not always sure that clients know what is best for them – after all, they come to lawyers for advice. But mediation seeks to address just this point – it is predicated on achieving an outcome that best meets the needs and interests of the client after a realistic assessment of all the alternatives the client faces. And in terms of control, a lawyer with a genuine command of the process and a thorough understanding of how to prepare for it is extremely influential in helping their client obtain the best result in all the circumstances.

Mediation at its best is a pragmatic process that provides opportunity for resolution on a number of levels –substantive, procedural and frequently psychological – to different degrees. Lawyers who fully appreciate its worth (and its shortcomings) have access to an invaluable dispute resolution tool that works within and as a complement to a purely legal approach. Those with a sound understanding of mediation can confidently recommend the process to their clients, properly prepare and participate with the self-assurance that they are adding value. And those with ability to look at a clients options at different stages in the process from the perspective of interests as well as rights and positions, do believe that they are serving their client better.