For lawyers, the abbreviation ‘ADR’ does not always signal Alternative Dispute Resolution, but rather:
“Appalling Decline in Revenue”. …… but not for all of us.
Fortunately, as a young trade union attorney I became a member of the Mediation and Conciliation Centre (MCC) which was founded in the early nineties.
After the implementation of the Labour Relations Act in 1995, I witnessed the evolution of our labour laws, the negative responses its implementation triggered in the legal profession and the so-called threat of the “soon-to-be-out-of-work” labour lawyer. As a part-time Commissioner of the CCMA in those years I was fortunate enough to become part of a more conciliatory process, as a mediator, so, I assume I can say that I was part of a first bread of lawyers who flashed the Mediation Party card! Today, labour law attorneys are still in business and they have adapted to the process.
Are attorneys the gatekeepers or the gateway to mediation? In fact, they are both, with the keys, firmly in their pockets. Unfortunately, as Mark Twain said: “To a man with a hammer, everything looks like a nail”, and this is how I think the majority of attorneys in South Africa view mediation.
The issue of global attorney resistance to mediation is one which has ruined the process since the early days of its re-birth in the 1960’s in the USA. While mediation has grown in many jurisdictions globally in recent decades and attorneys heavily populate the mediation field in many contexts both as mediators and as client representatives, simultaneously, attorneys and advocates are sometimes a roadblock in mediation’s path.
When it seems like everything around you, globally and locally, is in a constant state of dysfunctional conflict and turmoil, it is easy to think and act like it’s normal to be disruptive and disagreeable. Nothing could be further from the truth. It does not have to be that way when it comes to the practice of law and life. Mediation is the perfect place to do that.
It has been argued that although many attorneys have embraced mediation, the majority remain on the fringes apathetic and some are openly sceptical or even anti-mediation.
The South African family law system is still characterised as, combative, arrogant, and generally unloved, and it goes without saying that it needs a kinder, gentler, more humanistic approach. Our law is rational, adversarial and evidence-based, but often litigation is the result of irrational emotional drivers that emanate from issues that are mostly legally irrelevant and not capable of adjudication. Sometimes a trial is necessary, but many cases would be better resolved cooperatively, collaboratively, affordably and speedily in mediation.
2 Reasons why lawyers oppose mediation
Some grounds may appear genuine in their nature, while others emanate from rather dishonourable motives on the part of lawyers. I loosely group those that might be identified as illegitimate reasons for defying mediation as:
Reasons for doubts to mediation, which may, prima facie at least, appear more genuine, include:
3 Global speculation as to lawyer resistance to mediation.
In the family context in England and Wales it has recently been reported that lawyers continue reluctant to refer parties to mediation.
Research in the court-connected context in the Netherlands similarly implies that lawyers may have a negative influence on mediation referrals rates.
Similar findings were elicited in a study of mediation schemes in a number of European countries.
These findings tie in with a wealth of international evidence pointing to the incontestable finding that lawyers sometimes seem in practice hesitant to adopt mediation.
Don Peters, citing research from the USA, Italy, Poland, Germany, France and the UK goes so far to suggest that “the majority of the globe’s attorneys resist mediating”.
4 What is the Public Perception of Lawyers
While surveys of lawyers generally tell us that clients are happy with their own lawyers the general perception of lawyers is poor. They suffer a poor track record in comparison to other professionals. Anti-lawyer jokes are rife.
Q: What' the difference between a lawyer and a boxing referee?
A: A boxing referee doesn't get paid more for a longer fight.
Blogs and websites attacking lawyers are commonplace. Characterisations of lawyers in the print and visual media often present that lawyers are shysters, deadbeats, emotionally unstable or cold and calculating.
The typical public notion of the lawyer is one who "bathes in caviar and paupers’ tears" - a cynical professional driven by money to the expense of all else. However, we should be cautious of letting the poor perception of lawyers generally to bleed into a logical analysis of their interaction with mediation.
The poor image that lawyers suffer in public life may also, of course, be associated to the fact that consumers of legal services often turn to lawyers at emotionally distressing and financially detrimental times in their lives, e.g. divorce and separation. There is something inherently distasteful in the notion that money can be made from the distress of others. It is then a normal consequence of the social space in which lawyers inhabit—one often filled with their clients’ discomfort, angst and conflict—that negative views of such professionals may be held.
It is often remarked, that lawyers are ‘gatekeepers’ to mediation’s development. The argument follows that it is crucial that if mediation is to flourish then lawyers must be brought on-side with the process. While lawyers are likely often instrumental in legitimising mediation in the eyes of their clients, and empirical studies seem to hold out this assertion in many contexts, the impact of lawyers over their clients in the course of a dispute demonstrably varies dramatically.
Indeed, numerous studies have suggested that lawyers have become more and more receptive to mediation as a form of dispute resolution. However, this noticeable surge in general enthusiasm does not, it seems, always transfer into the reality of increasing case referrals, save where courts propel disputants (and their lawyers) into mediation.
5.1 Clients and Mediation
In replying to questions as to why mediation has not been taken up, lawyers often times blame their clients; the assumption here being that lawyers are helpless to persuade their clients to see the advantages that they themselves see that mediation might hold.
In a 2007 survey of German lawyers and mediators found that 85% of mediators and 67% of lawyers viewed that lack of knowledge of mediation in the client base was crushing mediation’s development.
More notably, client resistance may arise because parties are seeking to be ‘saved’ by champions to fight their corner, or because they might prefer an authoritative determination to be rendered on their behalf.
It is well worth exploring the lawyer-client relationship, in particular, seeking to ascertain, “who is in charge” and how that might impact upon the way that a dispute is handled and ultimately disposed of.
5.1.1 General Ideas
Historically it can be said that the legal profession has shown a need to exert dominance in the lawyer-client relationship and exercise their status as experts with the clients mere naive.
This has been accomplished through history by clothing the law in the mystique of legal practice in arcane language and practices. This kind of activity — generating a gap between the professionals' art and the layman -is typical to all professions in their pursuit for control and status.
Lawyers hold an informational advantage over their clients in the subject matter of their expertise, are able to take advantage of this knowledge gap to deliver the upper hand in the relationship with their clients.
5.1.2 Lawyer-Client Relationship in the Dispute Resolution Context
Commonly, lawyers play an important role in communicating ideas as to the legitimacy of different dispute resolution methods to their clients through “law talk”.
Research in the Israeli context also sustains the notion that lawyers usually remain in control of the decision to mediate or not, with many lawyer respondents signifying that they would hardly ever raise mediation with clients without pressing by the court.
Adrian Borbély's work in relation to mediation in France also implies that lawyers’ dominant position as professional agents’ vis-a-vis their clients in terms of dispute resolution determinations places them completely in the driving seat when it comes to determinations regarding recourse to mediation.
Lawyers control their relationship with clients and decisions relevant to dispute handling and it is straight forward to jump to the conclusion that lawyers portray a barrier to mediation development.
However, it needs to be appreciated that lawyers are not always in the dominance relative to their clients. Research has however shown that in general, the more sophisticated and powerful the client is, the less the lawyer is able to apply control over that client in their interactions in the classic garb of ‘patronage’ professions, such as how disputes ought to be resolved. In accordance with the traditional stereotype, it is true that lawyers presenting disempowered, clients in such disputes as divorce, may commonly view themselves as ‘uber drivers’— in which the client decides on the destination but the route (and thus how the dispute is handled) is determined by the lawyer.
Joseph Handler noted that even though “lawyers dominate the relationship when clients are poor, deviant, or unsophisticated… [s] trong, rich and confident clients direct their lawyers….”
At the base of the notion that lawyers have obstructed mediation's road by dint of their own financial requirements lies the debate that mediation is more cost-effective for participants than traditional means of resolving disputes.
In an article on mediation and lawyers, Len Riskin put it: “any lawyers, if they thought about it, would see mediation as an economic threat”. Despite bold claims that mediation will save clients’ money, proving this has not always been easy to establish in an empirical sense, evidence on the issue is mixed.
5.1.4 The Case Against Lawyers
In 2001, the Scottish Consumer Council, in the framework of discussing barriers to mediation, observed that while general lack of education and cultural barriers may have in part caused legal opposition towards mediation, “it may… be that some solicitors fear that suggesting mediation to their clients will cause them to lose out financially”.
Across Europe such statements have often been mirrored. According to one leading French arbitrator, for example, “[ t] here is a reluctance to use mediation in [Europe]. The reason being loss of potential income. After all, mediation is over in a few days even for massive cases; there are vested interests involved and mediation is simply not as lucrative for legal advisors”.
Danish lawyers argued that “it is equally apparent that the possible loss of income resulting from more mediation and less litigation rapidly became an issue for Danish attorneys”. In jurisdictions in which mediation is now well grounded, similar views have emerged, especially when developments were at an early stage.
At the beginning of mediation's introduction in Australia, for example, it was argued that while many eminent lawyers had become aware of mediation they represented a small minority and that “[ o] thers pay lip service to ADR with little intention of allowing it to disturb what is for many a very comfortable and profitable status quo.”
5.1.5 Economic Interests and Disputing Practices
The common argument that lawyers’ practices in the dispute resolution context may be shaped, amongst other things, by economic considerations has some empirical basis.
Lawyers paid on an hourly basis may favour recourse to full discovery and delayed settlement not just to give their clients extra power in negotiations but also to better their own levels of compensation. The billable hour is a has lent support to the assertion that lawyers are slaves to mammon first and devotees of their clients second.
As Christopher Mayson has noted, “[ w] hen performance and fees are assessed on [an hourly] basis, it is inevitable that lawyers will try to create as many chargeable hours as possible. Here is a system that rewards the inefficient, the ignorant, and probably even the downright incompetent.”
5.1.6 Ignorance and Cultural Barriers
Lawyer ignorance is a frequently cited roadblock to mediation developments globally. It sounds a bit silly to believe that after decades of publicity and promotion of mediation in most countries that lawyer ignorance truly remains to exist.
In the US context, John Dzienkowski has written that “[ t] he most fundamental justification for adversarialism involves the psychology of change…. [L] awyers' entire perspective on lawyering comes from this view that the adversarial system is immutable, and they feel very comfortable with the basic tenets of adversarialness. Thus, any change from the current system presents the strains and tension that accompany most changes in human experience”. In the context of Italian lawyers’ resistance to mediation, it has similarly been stated that, “[ a] nything that would challenge the sacred and intangible aura that surrounds legal jurisdiction is unconsciously considered [by lawyers as] taboo.”
5.1.7 Lawyers and Culture
Lawyers operate within an ‘adversarial’ legal culture, of partisan, competitive and aggressive behaviours on the part of lawyers. It is asserted that the effect of such characteristics is to promote the assertion of legal rights in a community through the legal resolution of disputes by litigation and positional bargaining in the shadow of on-going litigation rather than more harmonious means of dispute resolution.
5.1.8 Legal Education
Even though evidence indicates that life in legal practice may vary significantly from what goes on in the class room, legal education is nevertheless extremely important in developing the shape of a lawyer’s practices. Unexperienced lawyers often enter the profession with restricted awareness of mediation. As noted below, across the globe, mediation does not commonly feature considerably in core legal education.
Even in the most state-of-the-art jurisdictions, such as the USA, mediation may portray no more than a fringe sideshow within traditional legal education.
Don Peters has written that 91% of the core law curriculum in the USA amounts to traditional legal content and that the vast majority of law students (some 73%) get no exposure to non-adversarial, interest-based bargaining processes. If this is the situation in the flag-bearer for contemporary mediation, the potential for less advanced nations would seem bleak. For example, in spite of the work of a handful of enthusiasts, in Scotland there is presently very little provision made in terms of mediation education for law students.
6 In Closing
It is likely that lawyers will continue to plough a trench in the field of mediation. New, non-traditional breeds of lawyers and emerging legal practice models may also comport much better with mediation activity.
Changes in conventional legal markets combined with growing client awareness of, and openness to mediation may also promote growth. In current times, it seems that certain clients have begun to flex their muscles in the lawyer-client relationship, leading to a shift in the power dynamic and more client control over how disputes are handled.
Using a combination of statistics, personal experience and theory, I would like to venture some observations on family law litigators as gatekeepers to family law mediation: I believe that mediation is still very much a matter of personal taste amongst them. Here are some of the things that colleagues of mine, who I regard to be talented litigators, have said to me about mediation: “I only mediate cases I know I am going to lose”, and “why bother? If I want to settle, I’ll just go and have a cup of coffee with my opponent”, “I use it as a fishing expedition, if my client does not have insight into the finances”.
There is obviously a need not only to educate lawyers (at university, in practice and at mediation) about the promise(s) of mediation but also about the behaviour that obstructs and the conduct that helps the delivery on those promises. With that education of lawyers, as mediation advocates and as mediators, will come the potential that they will, in turn, educate and encourage the “true disputants” to take control of their dispute and to be more effective communicators – a truly valuable win/win outcome of the mediation process.
Former judge of the Supreme Court, in India R.V Raveendran had once eloquently said, “But, who will make mediation successful? The government is not going to do it. The lawyers will not encourage it. The litigant is not in a position to understand the benefits of mediation and conciliation. So, it is for the judges to take the lead in making litigants understand the value of mediation”
In closure, the words of Acting Judge Brassey comes to mind:
“How much richer would this solution have been had it emerged out of a consensus-seeking process rather than in adversarial proceedings in which positions were taken up that gave every appearance of callousness and cruelty. This is but an instance of what mediation might have achieved. In fact, the benefits go well beyond it. In the process of mediation, the parties would have had ample scope for an informed but informal debate on the levels of their estates, the amount of their incomes and the extent of their living costs. Nudged by a facilitative intermediary, I have little doubt that they would have been able to solve most of the monetary disputes that stood between them. The saving in time and legal costs would have been significant and, once a few breakthroughs had been made, I have every reason to believe that an overall solution would have been reached.”– (Brownlee v Brownlee August 2009: South Africa, South Gauteng High Court,).
Bertus Preller - Family Law AttorneyBertus Preller & Associates Inc.
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Bertus Preller studied at the universities of the Free State and Johannesburg. Bertus is also an experienced mediator and arbitrator. He is the author of Everyone's Guide To Divorce and Separation, published by Random House (2013) and he writes regularly on news24.com. He is also the founder of Divorcelaws.