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Are Some Members of the Legal Fraternity Amongst the Biggest Hurdles to Mediation?

2nd April 2024

One of the biggest frustrations of almost anyone in the mediation profession is the huge misunderstanding as to what mediation is amongst the broader community, let alone how the process works, the role of a mediator and the benefits of mediation. This misunderstanding is somewhat understandable to the general public; if only based on the relatively ‘youthful’ nature of mediation and the differences in language, culture and varying legal practices around the world when it comes to the term ‘mediation’.

Yet, without trying to sound like the parent of a teenager; there are some who quite simply “should know better” when it comes to mediation, and the main source of such criticism are some of those in the legal profession; who for me have unnecessarily or unwittingly become amongst the biggest obstacles for mediation in dispute resolution.

So, as I take a literary walk down a path that some may perceive as me ‘cutting my own oxygen line’ in terms of mediation referrals, given that the legal profession is arguably the biggest source of referrals to mediation professionals like myself; please do bear with me.

It is important to stress that many others in the legal profession are either a keen promoter and are knowledgeable about mediation, or open-minded enough to want to learn more about mediation and will happily work with specialist mediation professionals.

Struggling With Legal Resistance, But With 'Glimmers of Hope'

I will be quite honest in saying that at times the ‘knocks’ to mediation I have witnessed in terms of its professional standing and effectiveness have been numerous and largely unjustified. This has made me think at times that maybe I (and others) are fighting a losing battle with mediation in terms of wider acceptance and appreciation, especially with commercial disputes, and for me in particular, those disputes in the sports industry.

Yet there have been two ‘glimmers of hope’ that stand out to me from my experiences thus far with mediation in the sports industry, and both are connected to CAS (The Court of Arbitration for Sport).

The first such ‘glimmer’ came about when I appeared at CAS as an expert witness in a football related dispute, and on a couple of occasions one of the lawyers in the case seemingly dismissed mediation (away from the hearing), and clearly pronounced that “mediation just doesn’t work in sports disputes”.

Despite this being uttered by a well-respected, experienced and renowned football and sports lawyer, it became quite apparent from conversations thereafter that his knowledge of mediation was very skewed, misguided and largely incorrect. However, even with such misconceptions of mediation, known to be largely incorrect, it was (and continues to be) worrying that such highly qualified legal professionals seemingly are so misinformed about mediation.

Separate to this, but during the same period at CAS it was unbeknownst to me at the time, that CAS also recognised mediation as a viable means to resolve sports disputes. Yet on further research into this it became apparent that the proportion of CAS cases that found their way to mediation were comparatively minimal to the arbitration cases. As one person very thoughtfully once put it to me “by the time parties in dispute get to CAS, they have already fought too much, expended to much energy, spent too much money that, they just want a decision and the time for mediation has likely long since passed.

The second such glimmer of encouragement was again CAS related, and came about when researching mediation and CAS; and on reading an article in one of the CAS bulletin papers entitled Experience of A Sports Lawyer in Mediation’ by Max Duthie, a vastly experienced sports, entertainment, commercial and sports resolution lawyer from the UK, it seems that the frustrations of mediators (like myself), with some in the legal profession when it comes to mediation, is also shared by some of their peers from the legal community.

Legal Resistance and Apathy Towards to Mediation , Along With Misunderstanding Is Seemingly Nothing New.

Although not from the same sphere as the writer (Max Duthie), it became clear from this article that our views, observations, enthusiasm for mediation and mediation values were somewhat similar.

Yet, the most surprising thing from discovering this article, is that this resistance to mediation by some in the legal profession was seemingly nothing new, as this article was written for a CAS Bulletin approximately 10 years ago.

The article itself, was centred around 2 key questions:

  1. Why DON’T sports lawyers embrace mediation?

  2. Why SHOULD sports lawyers embrace mediation?

These questions themselves prompt me to write two further articles (that will follow in the not-too-distant future), but for now I just wanted to look at why nothing has changed in regards to this observation – that many in the legal fraternity have such a misguided perception of mediation some 10 years later; whilst mediation itself has matured, developed and grown in the wider world.

Is The Lawyer Mindset the Opposite ‘Polarity’ to that of a Mediator?

Whilst I don’t for one minute deny that someone from the legal profession can’t become a very good mediator (after all one of my mediation mentors/tutors was formerly a lawyer themselves), there is a feeling that the mindset of a lawyer and a mediator (or even an arbitrator and a mediator) are ‘different polarities of the same magnet’.

Personally, I believe it is a tough task to switch-off that ‘lawyer-circuit’ and mentality traverse into the role and mentality of a neutral mediator, no matter the willingness. Whether it be the underlying desire to win, find justice or ‘solve the problem’ (all arguably lawyer skills), being able to switch this off both consciously and subconsciously for a lawyer (or anyone) is difficult, if not impossible.

In a recent interview with a prominent lawyer in the sports industry, she commented:

Even with the hybrid concepts of Med-Arb and Arb-Med (which bring together the disciplines of mediation and arbitration), there is a strongly held belief that the role of mediator and arbitrator in such cases should be undertaken by different people. Although this does not correlate directly with that of a lawyer undertaking an assignment as a mediator, the mediation process could be undermined by the lawyer intrinsically being ‘hard-wired’ to naturally act in some ways as a lawyer (or arbitrator), rather than as a mediator.

Mediators or 'Mediation Advocates'

Starting out on the path as a mediator was a daunting process, especially during my initial training. Much to my surprise many of my fellow students in my cohort were lawyers, barristers or law students. Yet many of these were engaging in mediation training to better understand mediation, or switch to a mediation pathway from law ……. and few, if any were looking to effectively ‘wear 2 hats’ to practice both as a lawyer and as a mediator.

Yet looking at profiles on the likes of LinkedIn, there is an increasingly common theme of lawyers also listing ‘mediator’ as part of their credentials, and there is nothing wrong with that, although it does concern me.

This is not so much for the competition it brings, but moreso the damage I perceive it could do to the reputation of mediation (both as an industry and a concept), given the amount of misinformation and misunderstanding that seemingly exists about mediation in the legal fraternity (at least from my experience). As such it is my understanding that lawyers in other common law jurisdictions such as the UK (United Kingdom) could look to the likes of India, Australia and New Zealand to ascertain the importance of mediation in legal dispute resolution sphere

Yes, I am going to say it, that whilst many in the legal profession understand the basics of mediation, in my view and from my observations made and the discussions undertaken, the grasp of the core principals, values, and approaches of TRUE’ mediation are often diluted by rumour and misconceptions, if not lost in a legal mindset.

This not least as you don’t have to look far for cases whereby lawyers have (i) dismissed mediation due to not understanding it, (ii) engaged in mediation with a misguided understanding or (iii) even damaged a mediation process due to their own actions and misunderstanding in the mediation process.

At risk of ‘poking a bear with a stick’, in my opinion being qualified as a ‘mediation advocate’ is of far greater importance, if not value to a lawyer and their clients.  Allowing them to proactively participate in a mediation for the benefit of their client, is far more important than being able to switch roles to that of a mediator.  Hence, there has been a growth in ‘mediation advocate’ courses specifically for this purpose rather than lawyers undertaking mediator training itself.

I welcome the opportunity to discuss the topic of mediation further with any open-minded legal professionals to see how mediation can benefit them, their firms and most importantly their clients.