Business As Usual? Mediation and the Justice System

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Like many mediators I am conscious of the risk of overselling. However, in spite of having a reasonably high profile, and even its own chapter in the recent Scottish Civil Courts Review, 1 when it comes to our lawyers’ bread and butter work mediation remains one of the more neglected forms of dispute resolution. It is worth asking why, and exploring whether and how this may change.

This paper is in three sections: a “mythbuster” and two questions. First, I challenge three popular myths about mediation, all of which contribute to its muted reception in my own jurisdiction. Then I tackle the justice question: how does mediation add value to dispute resolution in a developed justice system? And finally I turn to the business question: why would lawyers send their clients to mediators?  I draw on a range of research, including two recent UK publications indicating profound change in the way that mediation is conceptualised by the legal profession. These are Mediation Advocacy, by Andrew Goodman, and Mediation: A Practical Guide for Lawyers, by Marjorie Mantle.

A) Three popular myths about mediation

• Facilitative = passive

This is an enduring idea, for which mediators must bear some of the blame. In essence it holds that their skills and philosophy lead them to be passive witnesses to conflict – holding the jackets, so to speak, while the clients have a “rammy”. 2 If these “touchy feely” mediators intervene at all, it is to ask parties how they are feeling, or simply to convey messages from one side to the other.

More than 15 years ago, US academic Leonard Riskin attempted to shed some light on the reality behind this myth by proposing a neat division of mediators into facilitative and evaluative. Facilitative mediators help parties to communicate clearly, understand their options and make their own decisions. They do not provide substantive input. Evaluative mediators, by contrast, assume that the parties are looking for guidance on the likely outcome of the case, and are not shy in providing that guidance (or evaluation) based on their expertise. Riskin’s “Grid for the Perplexed” 3 became a staple of law school mediation courses.

While useful as a conceptual scheme, it is too binary to describe current UK mediation. While most British mediators would hesitate before providing their evaluation of the case (not least because the presence of experienced lawyers may render this an unwelcome presumption), the most effective and successful mediators could now be described as “activists”. That is to say, they lead the process, probing, questioning, summarising, reality testing and, where appropriate, providing information about both procedure and substance. They are pragmatists, at times encouraging clients to tell their story, at others breaking into separate rooms to allow shuttle negotiation or even haggling to take place. Towards the end of the mediation they can undergo a personality change, from being the most optimistic person in the room to acting as devil’s advocate to ensure the final agreement is “conflict proof”.  

The challenge for our profession is the gap between rhetoric and reality.  Look at most mediation websites or training outlines and the words describe a facilitative approach; observe mediators in practice and we see an activist, or “strategic” reality. 4

2) “Mediators have no interest in justice and fairness”

I heard Professor Dame Hazel Genn make this assertion during her Edinburgh Hamlyn Lecture in 2008.  5 She is surely not alone in holding this view. However, I believe it is based on a simple error which dogs the legal system and those who study it: equating justice with law.

As a mediator I wrestle daily with questions of fairness. My clients appear to be making constant judgments about how just or otherwise a proposal or settlement may be. “The law” (or rather, what a court may decide depending on the credibility of the evidence and all the circumstances) is one factor influencing these judgments, but by no means the only one. American scholar Ellen Waldman highlights the importance of wider social norms in dispute resolution. 6 I will briefly describe her model because it helps to illuminate how decisions are actually reached in mediation. According to Waldman, mediators can be ranged on a continuum in terms of their approach to social and legal norms. She calls the three ideal types “norm-generating”, “norm-educating” and “norm-advocating” mediators.

Put simply, norm-generating mediators leave it up to the parties to decide the basis on which to judge the fairness of their outcome. If they bring the law into it that is their choice, but the mediator will not interfere. Further along the scale, norm-educating mediators provide information about applicable rules. They work hard to ensure that the parties understand these norms or rules, but still leave it to them to decide whether and how much they govern the outcome. Finally, norm-advocating mediators go a step further in ensuring that agreements comply with the relevant legal, ethical and professional rules.

To return to Professor Genn, while I disagree that mediators are ever totally disinterested in fairness and justice, those of a norm-generating bent will regard themselves as ethically bound to ensure that it is the parties’ own rules that apply. This approach is common in community mediation, but here again my fear is that mediation’s rhetoric can make it appear that all mediators fall into this category.

I contend that most, if not all, commercial mediators can be described as “norm-educating.” That is, they will take the lead in ensuring that everyone understands the legal and business framework before decisions are made. These mediators are comfortable in working with legal advisers, who help their clients understand the parameters within which courts or tribunals operate. They usually bring substantive practical and legal expertise and can talk knowledgeably about the pros and cons of different courses of action.

Norm-advocating mediators are probably a rarer breed. Some may go further than others in “reality-testing” clients’ choices, but most would stop short of actually insisting that a particular rule is followed. For one thing, who would grant a mediator that authority? What is clear, however, is that those who build a reputation as effective mediators are likely to provide information, guidance, even predictions, while still respecting your client’s right to self-determination.

• Mediation disadvantages the less powerful

 

This idea emerged, I suspect quite intuitively, soon after mediation’s rediscovery by the US justice system in the 1960’s and 1970’s. It holds that, if you remove the procedural protections provided by the adversarial system, those with more power, knowledge or clout will take advantage of the weaker party.

Two responses are worth making. First, this critique could just as easily be applied to any part of the legal system. It is a popular cliché that those with deeper pockets are at a significant advantage in litigation. 7

Secondly, mediators have responded to this critique by adapting their practice. As stated above, activist mediators work hard to ensure fairness, in particular procedural fairness. Because mediators cannot impose a decision, their best approach is to ensure that both parties buy in to the process by finding it fair and respectful. The ostensibly “powerful” party (who may not regard themselves as such) can find it unnerving that the other party is given just as long to speak, or helped to make their point as clearly as possible. Empirical evidence from the UK suggests that those who have been through mediation tend to rate the fairness of the process highly or very highly, even where they do not get everything they seek. 8

B) How does mediation add value to the Justice System?

Even if these myths can be challenged, mediation still needs to make a positive case. A great deal of ink has been spilled (with little impact in my jurisdiction) on criticism of the justice system. Even the Scottish Civil Courts Review described ours as “slow, inefficient and expensive.”  9 However, this focus on current failings can obscure mediation’s positive contribution to justice itself.  I outline three areas sometimes overlooked by legal practitioners.

1) Procedural justice

Since at least the 1980s, scholars have identified the powerful effect of procedural justice. Put simply, substantive justice (what we get) turns out to be less important than procedural justice (how we are treated) in people’s evaluation of how well they have done at the hands of the courts and others in the justice system. 10

A procedurally fair process provides “voice” (the chance to make your case), “being heard” (the belief that the authority figure considers your views); and “respectful treatment” (even-handed and dignified). This list conveys well the importance to parties of telling their story. One of my students, an experienced family lawyer, told us that this research explained one client’s surprising response. When she negotiated what she regarded as “the best possible deal”, he said he was “gutted”. The whole deal had been struck behind closed doors, between legal experts, whose training and commercial inclination teach them to cut to the chase. While the deal had scored highly in substantive terms, the client had no sense of being heard.

So how can mediation help? By providing a forum where parties get to tell their story, even if parts of it are legally irrelevant. And a competent mediator will demonstrate that s/he has heard and understood that story, while respectful and dignified treatment should go without saying.

The net result? Buy-in. When these crucial dimensions of procedural justice are present, parties are more likely to consider the substantive outcome fair. Tamara Relis’s study of Canadian personal injury mediation found that “93% of plaintiffs and 89% of physicians discussed the importance of expressing themselves and ‘being heard’”. 11 Experienced legal practitioners know how important is their client’s overall sense of justice in settling a case, and how tricky it can be to manage unrealistic expectations. Mediation can provide a procedurally fair settlement ritual, which lets clients know that justice has been done and can be seen to be done.

2) Substantive justice

None of this negates the importance of substantive justice. While lawyers are often sceptical about the courts’ capacity to deliver consistent, predictable and principled decisions, they rightly ask the same questions of mediation. So how does it perform?

First, mediators have no option but to seek a fair outcome: because they lack the power to impose decisions, they have to keep asking the question: “Is this acceptable?” And unlike others in the system, they ask that question of both parties, until both parties agree that it is. In effect the mediator is relying on people’s own sense of justice: and this may be where a mediatory approach subverts the instincts of those currently practising in the justice system. It displays profound disrespect for people and businesses to assume that only the courts know what justice looks like.  US scholar John Lande suggests that mediation delivers “high quality consent”. 12 This assertion highlights the importance in mediation of an alert and flexible legal adviser (a “mediation advocate”) in assisting parties to assess proposals.

Secondly, mediators bring to the table their own sense of justice. As discussed above, mediators are not passive. Reality-testing is a key strategy. For example, a mediator may ask client and solicitor, in private session, “How will this play in court?” The mediator is not saying, “I think this will go badly for you.” But she is alerting the practitioner and client to a potential problem. The practitioner may have it covered: well and good. Often, however, the solicitor may welcome the mediator’s input as a way of managing client expectations: “lawyers may also value mediators for their ability to deflate their own clients’ over-optimistic, dogmatic positions (something that lawyers themselves may have difficulty achieving given their status as client ‘champions’)”. 13

3) Negotiation agents: expanding the data

Here I borrow from Dick Calkins, veteran law professor and founder of the USA’s largest mooting and mediation competitions. He asserts that the mediator is the only person in the justice system who gets to hear both sides’ weaknesses. For this reason mediation can add value for even the most canny and experienced negotiators.

Negotiation involves “decision-making under conditions of uncertainty”. 14 In layman’s terms, we don’t know what we don’t know. Each side tends to put on its best face, even in the most civilised of negotiations. And in the adversarial cauldron of negotiation “on the steps of the court” this phenomenon is heightened. While we know our own strengths and weaknesses, when it comes to the other side we are left to guesswork. And there is plenty of evidence that, when it comes to this type of estimation, our guesses are often flawed. 15

Put simply, mediation improves negotiation efficiency by increasing the amount of data in play. It is not that mediators unearth people’s weaknesses and then betray them to the other side. A mediator who did this would quickly develop a very poor reputation. Rather, mediators help each party consider its own vulnerabilities as well as strengths, aware that the same process is playing out in the other room. In doing so, mediators can also unearth different but complementary interests: where one party can gain more than the other party loses.

To give a concrete example, it can emerge in the course of an employment mediation that one party no longer wishes reinstatement and is more concerned about securing a reasonable pension. The mediator may already know, from similar private conversations, that the employer is open to considering this. Handled with care, the mediator can explore with each party the range of possible settlements, leading to an outcome that is satisfactory for all but which neither side would have found easy to broach for fear of losing face or looking weak.

To summarise, mediation can add value by enhancing procedural justice (how clients are treated), honing substantive justice (what clients agree, ensuring “high-quality consent”), and expanding negotiation options (ensuring strengths, weaknesses and wider interests are taken into account).

C) Why does mediation make good business sense?

I could frame this in a less subtle way by asking, on behalf of lawyers everywhere, “How can sharing my fee with a mediator increase my fee-earning capacity?” Marjorie Mantle sees this in simple terms: “your fee income can increase and your client base grow when mediation is used appropriately”. 16 It is not unreasonable to ask how. I focus on two areas: attracting clients and representing them in mediation itself.

1) Attracting clients

Many of us will know that clients are often the last people to seek mediation. The suggestion of a collaborative approach can be met with stiff resistance, e.g. “Are you saying we have a weak case?” (sometimes the answer is yes); or even “Whose side are you on?”

We need to draw a distinction here between what Mark Galanter has termed “repeat players” and “one-shotters”. 17 I will return to one-shotters (those in courts or tribunals for the first time) shortly, but many of our clients are in fact repeat players. Whether from business or the public sector these clients are sophisticated, informed and acutely conscious of the increasing cost of disputes.

Rather than reacting to disputes on an ad hoc basis, mediation can be presented to these clients as part of a comprehensive risk management approach. In this way lawyer and client jointly design a system that takes into account the circumstances, risks and likely costs at each stage, from negotiation, through mediation to court action. Mediation thus becomes part of a rational and proportionate strategy to deal with matters that can be both troublesome and time-consuming for clients. And the lawyer expands his or her range of services to include “dispute resolution adviser”. 18

Another dimension of the mediation choice relates as much to one-shotters as to repeat players. This comes through strongly in Relis’s research: while lawyers are trained to narrow problems to their legally relevant components, clients’ concerns are often much wider, including the emotional, time and business costs of a dispute. She found that clients on both sides of disputes appreciated the non-legal benefits, while lawyers seemed curiously unaware of this. Mediation can expand lawyers’ range by addressing these “non-legal” concerns while still working towards a settlement: “What pervaded disputants’ talk on mediation agendas was their wanting to directly communicate their perspectives, be heard, seen, and understood”. 19

Finally, satisfied clients are good for business. If mediation helps clients resolve disputes in a way that is quick, inexpensive and humane, they will return to the lawyer who recommended the process.

2) Mediation advocacy

It is a mistake to see mediation as an alternative to legal representation. It is more accurate to describe it as an alternative to adjudication. Lawyers have always made a good proportion of their living by representing clients in litigation: equally, clients need effective representation in mediation. Where the value of a claim is modest, clients may choose to mediate without a lawyer present. However, most commercial, employment and personal injury matters are of sufficient value and gravity to require effective advocacy.

So what is “mediation advocacy”? Andrew Goodman lays out five roles:

• deciding to and persuading others to engage in the process;
• choosing the mediator;
• controlling the pre-mediation element;
• team-leading at the mediation itself;
• securing a working settlement. 20

At each stage the lawyer plays a crucial role in managing the process. With mediation still at a relatively early stage in its development in Scotland, choosing the mediator can prove more difficult here than in more developed jurisdictions, but it certainly requires attention and judgment: “the selection of your mediator may be the most important decision you make regarding the mediation”. 21

The conduct of the mediation itself requires a particular set of skills. Goodman suggests that any disadvantages created by lawyers’ training in the adversarial system are offset by their skills in “critical analysis, [in] problem solving, and [in] communication in circumstances where dynamic change is part of the dispute process and has to be reacted to and catered for”. 22 Lawyers have to be on their toes to represent clients effectively in mediation.

Perhaps this is the ground-breaking idea, not just in Scotland but across Europe: lawyers may in the future make a good proportion of their living representing clients in mediation. Not long ago Scotland’s Faculty of Advocates 23 seemed quite stunned to hear Australian QC Ian Hanger tell us that the Queensland bar makes half its income from ADR. Are we are missing a trick in the “old world”?

Conclusion: business as usual?

I have described some persistent myths, considered mediation’s contribution to justice and set out some of the business reasons for its greater use.  In the end it is probably a combination of all three (familiarity, usefulness, and commerce) that will see mediation being more widely used in future. My key point is that mediation and justice are not opposites: they are intimately linked, and the smart mediation advocate will understand how to deploy this particular form of alternative dispute resolution to enhance their clients’ experience of the justice system.

A version of this article first appeared in the Journal Online (the online journal of the Law Society of Scotland) in April 2012.

FOOTNOTES