The following article is a revised and expanded version of lectures delivered by the author at the Victoria University of Wellington School of Law and the Faculty of Law, University of Auckland in October, 2014 as the New Zealand Law Foundation's International Dispute Resolution Visiting Scholar.
The author posits that the mounting global preoccupation with mediation, resulting in a proliferating array of institutions, programmes, laws and regulations; an international "evangelical" movement; and growing impetus for an international convention promoting the recognition and enforcement of mediated settlement agreements, should be accompanied by our collective reflection, dialogue and discernment regarding where we have come to and where we are going.
He urges active discussion and deliberation on a host of questions and concerns, including (1) our fundamental understanding of the nature and practice of mediation; (2) the impact of lawyers on mediation, and the appropriate interplay between client and counsel in making process choices; (3) the influence of culture and of legal traditions; (4) the interplay between the facilitation of settlement and processes of adjudication; (5) the potential impact of mediation on the rendition of justice. This conversation should be augmented by an assessment of current mega-trends – the challenges and opportunities presented by information technology, neuropsychology, the mining of big data, and initiatives aimed at institutionalising or professionalising mediation.
Finally, there should be a new examination of heretofore-unfulfilled opportunities, such as the "upstream" (that is, early and pre-litigation) use of skills and insights gleaned from our experience with mediation for the purpose of sustaining and improving relationships.
I INTRODUCTION: REVERBERATIONS OF THE QUIET REVOLUTION
At a time when unprecedented attention is being paid to the resolution of conflict, and many are expressing concerns about rising costs, lengthening cycle time, and other aspects of international litigation and arbitration, there is intensified focus on mediation and other approaches aimed at actively managing and resolving conflict efficiently, informally and consensually. Its proponents tout mediation as an informal and flexible path to cost and time-saving, as well as overcoming cultural barriers, improving communications, restoring or maintaining relationships, promoting confidentiality and producing more creative, satisfactory and durable resolutions. In less than four decades, the North American model of "modern" mediation has seeded a wide variety of public and private initiatives worldwide, given impetus to calls for the use of mediation in the resolution of international commercial and investment disputes, and even inspired a push for a new kind of international convention. But our broadening international conversation should be accompanied by more active mutual engagement and discernment. There are questions and concerns that should be addressed if the varied approaches that fall under the rubric of "mediation" are to attain their maximum global effectiveness as a pathway to the resolution of disputes and the management of conflict within relationships.
Although forms of mediation have been in play for thousands of years,6 our present, evolving global preoccupation with mediation and other techniques for managing conflict was prefigured by developments in the United States beginning nearly four decades ago. That "Quiet Revolution" sprang from multiple wellsprings, including concerns about the perceived risks and costs of litigation as well as delays resulting from crowded court dockets, and the desire to empower parties to more effectively achieve a resolution of their own disputes and even sustain, restore or transform human relationships. This growing wave of change produced hundreds of court-connected programmes aimed at promoting negotiated or mediated settlement of litigated cases; analogous measures sponsored by numerous federal and state agencies; myriad neighbourhood justice centres or community-based mediation programmes; and a host of bodies or groups (from bar associations and non-governmental organisations (NGOs), to for-profit entities) aimed at promoting or providing education, training or professional dispute resolution services. Some of the organisations with which I have been affiliated, including the Center for Public Resources (CPR) (later renamed the CPR Institute for Dispute Resolution, and more recently, the International Institute for Conflict Prevention & Resolution) and Pepperdine's Straus Institute for Dispute Resolution, were early – and abiding – manifestations of the Quiet Revolution.
While by no means the only locus of change, mediation was the epicentre of the Quiet Revolution and the mainstay of court-connected and other ADR programmes. Mediation is increasingly featured in contractual stepped procedures for resolving disputes, and in many parts of the United States, it is almost unimaginable that a case would proceed through litigation without at least one "stop" along the way for mediation. One strong indicator of the pre-eminence of mediation in the landscape of dispute resolution was the response of hundreds of corporate counsel at Fortune 1,000 companies to a 2011 canvas following up on a similar study in 1997. According to data from the survey, which appears to have been reflective of the practices and perspectives of United States counsel, mediation was employed by nearly all companies, and was brought to bear more frequently on a wide array of business-related disputes. A large majority of respondents viewed its continued usage by their companies as "likely" or "very likely".
The Quiet Revolution gradually produced large and growing cadres of self-described dispute resolution professionals who devote some or all of their time to mediating cases. Introductory training programmes have attracted thousands of participants over the last three decades, and demand remains unabated. Mediation is also a key component of a growing number of academic dispute resolution programmes; Straus' academic curriculum consists of more than three dozen different courses, with programmes leading to an LLM, Masters in Dispute Resolution or a Certificate in Dispute Resolution.
The growth of a professional class of mediators spurred the development of, and was in turn spurred by, national associations such as the American College of Civil Trial Mediators, the Academy of Professional Family Mediators and the National Association for Community Mediation. Another of the leading organisations of individuals with established reputations and extensive experience as professional mediators is the International Academy of Mediators (IAM), an organisation founded in 1996 by mediators who focused primarily on the resolution of civil cases, a kind of mainstream mediation practice. A 2014 survey co-sponsored by the IAM and the Straus Institute for Dispute Resolution at Pepperdine University (Straus Institute) revealed a group comprised predominantly of mediators practising in the United States, all of whom began mediating since 1980; nearly half did not mediate until the mid-1990s. If one could describe a "typical" respondent to the Survey, it would be a male in his early 60s who had mediated for 20 to 25 years, who is employed full-time and devotes the vast majority of his working hours to mediation, and who has mediated more than 1,000 disputes. He handles a diverse caseload of more than 50 cases a year.
Outside the boundaries of the United States, the "modern" American evolution of mediation was first emulated to some degree in other common law countries – notably, the United Kingdom and Commonwealth entities Canada, Australia and New Zealand. Mediation practice has been evolving in the United Kingdom for more than three decades, thanks in part to private organisations that took the lead in developing a professional infrastructure for mediation in the United Kingdom. The most influential of these organisations is the Centre for Effective Dispute Resolution (CEDR), founded in 1990. According to a 2012 Mediation Audit, about 8,000 commercial and civil cases are now mediated each year in England and Wales. In Canada, similarly, "mediation has evolved into a leading component of conflict resolution".
Mediation is also well established and well integrated into the legal system in New Zealand. Although the country has no general mediation statute, provisions for mediation may be found in more than 60 statutes.The maturity of mediation practice in New Zealand is reflected through the establishment of the Arbitrators' and Mediators' Institute of New Zealand (AMINZ), "the leading body in New Zealand for people working in the area of dispute resolution". A "not-for-profit organisation dedicated to upholding, certifying and promoting the highest standards in mediation and arbitration, and other forms of dispute resolution," AMINZ functions as a networking and convening body as well as a trainer and coordinator of educational programmes.
The reverberations of the Quiet Revolution have been felt throughout the world, as reflected in the development of international and national standards and the creation of institutions providing mediation services. Among the most prominent responses was a European Union Directive designed to promote the establishment of a formal framework for cross-border civil and commercial mediation. In drafting the Directive, the European Commission and Parliament were guided by the principles of predictability and flexibility, producing a framework which left much to the interpretation and initiative of individual European states.
In 2002, the United Nations Commission on International Trade Law (UNCITRAL) adopted a Model Law on International Commercial Conciliation, a document intended to facilitate the development of harmonious legal frameworks for "proceedings in which a person or a panel of persons assists the parties in their attempt to reach an amicable settlement of their dispute".
Yet the establishment of legal and institutional structures for mediation does not signify, nor does it necessarily promote, widespread use of mediation. The fact is, "modern" mediation has taken broad root in some places and failed to broadly germinate in others. In many places around the world the promotion and burgeoning of a "supply side" has yet to be met with discernible demand.
A 2014 study, suggestively titled "Rebooting" the Mediation Directive, concludes that despite the passage of legislation and the development of an "ADR Movement" fuelling the creation "of new mediation centres, publications, conferences and trainings", the 2008 European Union Directive on Mediation "has not achieved its objective of … promot[ing] the amicable settlement of disputes by encouraging the use of mediation and by ensuring a balanced relationship between mediation and legal proceedings". Although a single outlier, Italy, which mandates that parties sit down for a "preliminary" meeting with a mediator (at no cost) before litigating, claims over 200,000 mediated cases annually, almost half (46 per cent) of European Union countries reported less than 500 mediated cases, and only three (the United Kingdom, Germany and the Netherlands) claimed more than 10,000.
Take the case of Austria, which has been described as "one of the first movers in the field of mediation". 38 Austrian mediation has been the subject of a fairly comprehensive regulatory framework since a 2004 Act established a national Advisory Council for Mediation at the Ministry of Justice, established requirements for listing on the register of mediators, set requirements for training institutes and courses, promulgated rights and duties for registered mediators, and other matters.39 As of 2012, 2,377 mediators were registered in Austria.40 However, in 2013 it was reported that only 500 to 2000 mediations were occurring annually.
Even in Germany, which reported more than 10,000 cases annually, "mediation has led a quite shadowy existence … and has not yet become a significant part of the legal landscape". However, proponents anticipate that the enactment of a new Mediation Code in 2012, which established a regulatory structure for mediation in domestic and international cases, may stimulate changes through greater public awareness and appreciation of mediation.
Thus, although mediation is an increasingly visible part of the landscape of international commercial disputes,45 it has not achieved the status it enjoys in the United States. A study published in June 2010 under the auspices of the European Commission indicated that on average, mediation was only being employed in about 0.5 per cent of litigated cases in Europe.
In the 2013 Queen Mary survey of selected international corporate counsel in the financial services, energy and construction arenas, mediation actually ranked below arbitration and court litigation as a preferred dispute resolution mechanism.
However, the landscape is shifting and the very existence of a vocal and growing "evangelical" base for mediation may itself bring about a tipping point. Again, the 2011 Fortune 1,000 survey of corporate counsel indicates that leading international corporations are very favourable to the use of mediation. The International Mediation Institute now proselytises and offers a form of credentialing on a global scale, as well as a form of user feedback. Long-standing institutional proponents of international commercial arbitration like the International Chamber of Commerce (ICC) have placed increasing emphasis on mediation; the ICC now sponsors a high-profile international mediation competition for law students, and a mediation analogue of the Vis International Commercial Arbitration Competition is being organised. Just recently, preparations have been made for an UNCITRAL Working Group to explore the creation of a Convention on the Enforcement of Mediated Settlements, an international platform for the enforcement of mediated agreements intended to mimic the role played by the New York Convention in the international enforcement and recognition of binding arbitration awards. Would-be leaders in the global dispute resolution market, such as Singapore, are touting new and improved brands of international mediation. Its proponents undoubtedly hope that such a platform will boost commercial mediation – domestic and international – into overdrive.
Whatever one's views on these developments, the mounting global hubbub surrounding mediation, and highly varied perceptions regarding the nature and value of mediation, underscore the need for thoughtful conversation and deliberate reflection on present trends and tendencies. The failure to periodically step back and take stock of where we are and where we are going increases the likelihood of behavioural "drift" – that is, action that becomes increasingly reflexive as opposed to deliberate.
The following discussion briefly touches on three general areas of inquiry, each of which is intended to surface present challenges as well as opportunities.