“Why do people choose to ask a neutral third (Judge or Arbitrator) to make a decision for them in a dispute, rather than choose to make a decision for themselves in a negotiation, mediated by a neutral third (Mediator)?”
What is it that fundamentally causes people to choose to take the risk of litigation and ask someone else to decide the outcome of their dispute? There are a number of perceptions about mediation which need to be debunked.
Who really understands what mediation is? People confuse it with caving in, arbitration or negotiation without a mediator. And there isn’t anyone necessarily available to immediately explain that mediation is not those things. Mock mediations, dramatic examples of mediations on a range of media are slowly chipping away at the ignorance as to what mediation is. This can help people who have often never attended a mediation to understand what is involved.
It is not known how early nor how strongly lawyers advise their clients to consider mediation. Somewhat facetiously, the phrase ADR has been associated with Alarming Decrease in Revenue, suggesting that lawyers are lukewarm in proposing mediation to clients. This is generally unlikely to be the case. It is more likely that lay clients arrive angry and adamant to fight, sure they will win, so that any idea of a mediation falls on deaf ears as being an unattractive soft option. The lawyers may have a difficult task to choose the moment to raise the possibility of mediation.
Another objection to mediation is that it is a costly ‘add-on’ to litigation, and there is merit to this objection when it is approached as a box-ticking exercise. An argument against compulsive mediation prior to litigation is that it may become just that, a tick in a box. However, doing the sums and weighing the risks in costs, the choice will almost invariably come down in favour of mediation as first choice, all other matters being equal.
“All other matters being equal”. This is the point. They are not. Apart from practical, factual, case-by- case considerations, one well-recognised matter, which hinders the step to mediation as first choice, is the lay client’s visceral passion to see that the opposing party is utterly crushed in Court, and certain belief that he will be. These are elements of the choice people make to litigate rather than mediate which is part of the research being done on the question at the top of this blog.
Research is needed to inform future policy with the aim of increasing the use of mediation and reducing the number of litigants in person. I am currently undertaking such research to better understand the influences which are brought to bear when people in a dispute are choosing how to deal with it and deciding whether to litigate or mediate.
I welcome views, comments and experiences to assist this research. Please email me at firstname.lastname@example.org