Lawyers’ Resistance in Construction Mediation

Introduction
The interaction between lawyers and mediation has long been a controversial one.  Rivers of ink have been spilled on the issue.  Opinions, when expressed, are often sharply divided.   The debate raises a number of questions.  Do lawyers resist mediation?  If they do, then why is that the case?  Are they ignorant about the process?  Is mediation culturally at odds with their standard modus operandi as lawyers?  Are there financial imperatives that lead to lawyers turning their back on mediation?  Are hapless clients powerless in the face of their lawyers’ steely resistance to mediation? 
What we can say for sure is that despite its heavy promotion over recent decades when mediation remains a purely voluntary option for disputing parties, take up is generally low.  This is as true in construction matters as in any other field.  My own recent research into Scottish construction mediation, along with similar studies in England and Wales point to a developing field of construction mediation and a growing cabal of mediation enthusiasts within the legal profession, but overall the case numbers remain very modest. 

Perceptions of Lawyers
My own interest in the issue of lawyer resistance to mediation was first piqued by my conversations with Scottish mediation pioneers in the mid 1990’s who, frustrated that clients could hardly be accused of knocking down their doors to experience the joys of mediation, often laid the blame for the poor uptake firmly at the foot of lawyers.  Similar speculation that the lawyer is a roadblock to mediation can be detected across the globe.  It is easy to blame lawyers for the poor uptake of mediation.  Lawyers are a soft target.  They suffer a poor reputation when compared to other professions (except bankers perhaps, but that won’t last).  Disparaging (but often funny) jokes about lawyers are rife.  The internet is awash with blogs lambasting the legal profession. Lawyers are typically portrayed as cynical, penny-pinching shysters or sharp, cunning, adversarial hawks.  Neither depiction sits well with mediation’s speedy, cost effective and harmonious image.
Despite such suspicions, in the UK as in many other countries, lawyers have in fact been at the forefront of mediation developments.  Much of the impetus for mediation growth in England and Wales stemmed from the Civil Procedural Rules in 1999 and their vigorous implementation by enlightened members of the judiciary.  Scottish developments have lacked the institutional scaffolding provided by promotion through court rules, but certain members of the judiciary are supportive, including Lord Glennie, who as a fellow speaker of mine at a recent construction mediation conference at Glasgow Caledonian University, spoke warmly of the merits of the process.  Although initially criticised for defensive marketing, UK legal professional bodies too have recently stepped up efforts to propagate mediation throughout their membership.  Add to the mix the fact that lawyers are prominent in offering mediation services in the construction as well as other sectors, and legions more have been trained in mediation techniques, and the thesis of lawyer resistance perhaps teeters on shakier ground. 

Lawyer Ignorance
Nonetheless, research in the UK inescapably points to the existence of barriers to mediation within the rank and file of the legal profession.  In terms of a basic lack of knowledge, it may stretch credulity to accept that after decades of promotion of the process that any lawyers may remain truly ignorant of mediation. Nonetheless, although surveys generally find lawyers confidently affirming their own knowledge of mediation, they are often much less equivocal in their assessment of their colleagues’ awareness levels.  Moreover, lawyers’ self-espoused knowledge does not always translate into practice of mediation.

Cultural Biases
The issue of ignorance is intrinsically linked with culture.  A legal culture that does not recognise mediation as a legitimate activity may nurture continued ignorance of the process, at least in any well developed sense.  Mediation may be ignored by some in the profession simply because it does not ‘fit’ with traditional practice for running a case.  Mediation can involve earlier case preparation and a greater sharing of decision-making control with the client than lawyers may be familiar or comfortable with.  Mediation also entails involvement in an unfamiliar process, within which even the most confident lawyers may be unsure of their footing.  Fledgling lawyers also often enter the profession with scant awareness of mediation.  While mooting and advocacy are often highly prized, law students are not typically taught how to mediate or trained in the integrative problem-solving techniques central to mediation.  The bulk of law school education is devoted to case analysis and the application of the law to narrative facts absent of any mention of clients and their extra legal interests.

Money, Money, Money
At the root of the notion that lawyers have blocked mediation’s path by dint of their own economic imperatives lies the argument that mediation may entail significant cost savings in terms of outlays which otherwise might be expected to line the pockets of lawyers charging by the billable hour.  Surveys of lawyers in fact reveal little evidence of a profession in fear at the prospect of mediation skewering their generous income stream from traditional ways of resolving their client’s disputes.  Of course, “they would say that” I hear you say.  Nonetheless, while much UK research in the construction field suggests that significant costs savings can be made for mediating clients, mediation may not always be a cheaper option, particular in lower value disputes and in those ripe for adjudication.  It should also be noted that lawyers have a track record of capturing ‘alternatives’ to ensure their continued role within them as they develop, adding to complexity and cost in the process.  Arbitration anyone?    

Conclusion

Clearly, barriers to mediation’s development in the legal profession exist and require to be surmounted.  It perhaps does hard-nosed construction clients and contractors a disservice, however, to suggest that their lawyers are able to ride roughshod over their legitimate desires and aims in the course of dispute resolution.  Construction parties are often powerful, repeat players.  They understand the dispute resolution game.  The hard fact is that many clients remain unconvinced about the merits of mediation.  There may be genuine fears about the costs involved, non-binding nature of the process and quality of prospective mediators.  The promise of mediation may also do little to assuage the disputing client’s appetite for conflict and confrontation in the heat of the battle.  We know from research that parties – including those who may have baulked at mediation at the outset – generally do settle at mediation and are very satisfied with the process.  Crossing the Rubicon is the hard part.  Mediation enthusiasts – lawyers and non-lawyers too – need to do more and think smarter about how to sell the process to users more effectively.

                        author

Bryan Clark

Dr Bryan Clark, Reader, Law School, University of Strathclyde, is a mediation scholar and commercial lawyer and teaches on the MSc in Mediation and Conflict Resolution and LLM in Construction Law at Strathclyde.   MORE >

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