Research
Dr
Bryan Clark,
Dr Bryan Clark has recently completed a
substantial survey of awareness, experience and attitudes towards ADR,
including mediation, among commercial litigation lawyers in Scotland.
His
findings are fascinating and will be published soon. Key results include:
·
there is a widespread awareness of mediation as the virtually exclusive
ADR practice; many lawyers have received some training
·
over two thirds of respondents had recommended mediation to their
clients
·
those who have received training are more likely to suggest mediation
and to represent clients in it
·
cost saving, speed, privacy, creative solutions and preserving business
relationships are perceived benefits
·
mediation is used where litigation prospects are viewed as strong as
well as weak – and is not viewed as a sign of weakness
·
client resistance is a key factor in declining to use mediation and in
any mediation failure
·
nearly two thirds of those respondents who have experienced mediation
have used it again
·
mediation is used in a wide range of disputes, with settlement rates
approaching 80% - and higher if “partial” settlement is included
·
there is a high level of satisfaction with mediation
·
many lawyers see mediation as a new business opportunity and have a
prominent role in the growth of mediation
·
compulsory referral to mediation is not supported although judicial
encouragement may help
·
mediation is not viewed as detrimental to the development of the law but
as a way of expediting settlement
·
the future development of commercial mediation may rest on clients
understanding the commercial benefits for them.
Amanda
Bucklow
Legal Week
recently reported the findings of Amanda Bucklow who has researched
attitudes and expectations about commercial mediation. She has concluded that
regulation of mediation is not desirable and that focussing on standards and
training is preferable. She identifies the key skills, qualities and attributes
of mediators as building rapport, listening, stamina, empathy, patience and
humour. She has discovered that the skills and qualities that are valued by
parties and advisers who have experienced mediation include: trustworthiness,
gravitas, patience, confidence, even-handedness, impartiality, optimism,
persistence, understanding, imagination, and being "quick on the
uptake". Click here to read the
article.
Amanda
recently addressed an in-house seminar organised by Core, sharing some of the
insights gained through her research into mediators' aptitude.
The research
covered a year of mediations with 30 mediators and 30 “serial users of
mediation”. The purpose of the research was to identify and start a process of
evaluating the intangible strengths of mediators. Amanda described how
excellent mediators use their skills to create an environment for parties to
“choose to agree”.
The research
highlighted how users of mediation value some strengths which mediators themselves
take for granted (for example: ability to build trust), or those which
mediators do not even mention as part of their mediation ability (for example:
intelligence and incisiveness).
During the
seminar, participants commented that they had seen clients’ impressions of
mediation change, both during and in the months after they had experienced
mediation. It seems that members of the legal profession often enjoy the
mediation experience as an alternative to more traditional processes.