It’s scarcely surprising these days to note the wide range of support for mediation – and indeed to note the degree to which it is litigation that is daubed with the ‘alternative’ tag. It’s even more encouraging to see the degree to which major law firms are not merely using, but also advocating it and undertaking empirical research on the benefits – to substantiate the often enthusiastic claims as to the success rates and cost savings.
I note here just one example, simply because of my recent contact with them here in Singapore. The international law firm, Herbert Smith LLP, has been keeping statistics on ADR use for some time, and has also conducted research on attitudes of users of ADR.
And, from The Mediator Magazine: http://www.themediatormagazine.co.uk/news/27-herbert-smith-unveils-important-new-research-into-adr-use – on HS’s survey on why the “blue chips” are increasingly turning to ADR. Also reported in LegalWeek.com: http://www.legalweek.com/legal-week/news/1155215/herbert-smith-bluechips-adr
The flip side of this is the comment that I’ve heard on a numerous occasions since returning to Singapore just over a year ago, to the effect that mediation doesn’t have a high profile here;mediation is not [yet] widely accepted; there’s still a level of resistance in the legal profession to mediation; mediation is seen as the process you use for family, neighbourhood, community disputes, but not for the big ticket commercial stuff. This will be familiar to many as the kinds of arguments that were raised 20 years or more ago. And the irony is that, while mediation was first seen as a low-cost means of enhancing access to justice for those who might not have access to the courts, thus freeing the courts for the commercial cases, it’s now the commercial people who are amongst the strongest promoters and users.
But what we may have here is a double cultural speed bump (not a barrier!) to the implementation of mediation. First, despite the fact that mediation is perhaps the oldest and most traditional form of dispute resolution in this region, it remains unfamiliar in its modern incarnation. The traditions of mediation rest on non-litigious values, and on the perceived role of elders and those bearing some degree of authority in persuading disputants towards resolution. Enough has been written on this elsewhere to illustrate the recent history of mediation, the borrowing of the forms of mediation by the West, and the adaptation through developing norms of mediator neutrality, mediator qualifications rather than authority (that’s another thread of conversation currently going on, if you check the blogs on www.mediate.com), and principles of disputant autonomy and the confidentiality of the process. The mediation we’re now selling – and especially trying to sell as a serious commercial resource – may well face the impediment of these long-held perceptions of mediation as a process that is essentially community-based, reliant on the authority and wisdom of elders etc.
Alternatively, rather than regarding this as an impediment, the task might be that of adaptation, in recognising that, in more traditional and hierarchical societies, the mediator does have a different social and normative role. And, despite its obvious modernity, Singapore retains – and proudly retains – many of those attributes of traditional and Confucian values.
The second part of the cultural speed bump relates to the professional culture of lawyers. It’s an issue which most jurisdictions have faced in the development of mediation. And perhaps because of the first of these cultural factors, the legal profession is said to be not yet fully apprised of the benefits of mediation. It has to be said also that one of the arguments for mediation, in overcoming delays in the formal legal process, simply isn’t a major issue here.
There are, I think, two phases to addressing this: first, in providing the evidence that mediation is, in fact, the better way to deal with disputes and that litigation is a low-ranking option; and second, in providing training in mediation (against a background of the assumption that professional dispute resolvers – i.e. lawyers – need no further training). On that second point, there is at least anecdotal evidence that the more we see lawyers at least going through a basic mediation training programme, the more likely it is they will improve their negotiation skills and also act more effectively as advocates in mediations.