Abstract
This chapter analyses some of the reasons why lawyers have seen fit to seek involvement in mediation activities. In particular it focuses on the idea that lawyers have deliberately sought to co-opt the mediation field and claim it as part of their own legitimate professional activities at the expense of other would-be mediation practitioners. Aside from professional moves to protect existing practice turfs and stake a claim to new business the chapter also discusses other reasons why lawyers may have entered the mediation field including, a genuine commitment to the goals of the process; belief in the practical benefits of mediation; seeking out new, more rewarding work; and responding to the needs of clients. The chapter also reviews some of the strategies and techniques that lawyers across the globe have used in gaining a foothold in the field often at the expense of non-lawyer mediators such as defensive marketing and claiming ownership through professional bodies, domination of approved rosters, lobbying legislatures for rights to restrictive rights to practice mediation and lawyer ‘shopping’ for lawyer-mediators.
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Notes
- 1.
The mediation field generally has been characterised by much internal squabbling by competitors trying to establish a power base in the field—for a potted discussion see Parkinson (2010).
- 2.
- 3.
We should also remember that the motives of individual lawyers in this regard may also deviate sharply from those of professional bodies.
- 4.
Dezalay (1991), p. 795.
- 5.
Abbot (1986), p. 190.
- 6.
Felstiner and Sarat (1980–1981).
- 7.
Or even completely irrelevant.
- 8.
See Chap. 1 at Sect. 1.1.2.
- 9.
See Sect. 3.4.3.
- 10.
See generally Abel (1989a).
- 11.
Nolan-Handley 2002.
- 12.
Dezalay 1991, p. 801.
- 13.
Their general reputation may also add fuel to such suspicions, see Chap. 2 at Sect. 2.2.
- 14.
Abbot (1998), p. 247.
- 15.
Dezalay (1991); Abbot (1998).
- 16.
Sugarman (1995).
- 17.
Larson (1997).
- 18.
And not originally concerned with the pursuance of financial aims –see Chap. 2 at Sect. 2.4.2.
- 19.
Burrage (1988).
- 20.
See Chap. 2 at Sect. 2.4.2.
- 21.
Sugarman (1995), pp 229–230. He also argues that complacency and strong traditional markets may have led to the ceding of power to accountants in perceived fringe areas. The ‘gentlemanly’ nature of the English legal profession may also have militated against too much involvement at the coal face of business.
- 22.
See, for example, de Roo and Jagtenberg (2006).
- 23.
See Macfarlane 1998, p. 3 reporting that the numbers of American and Canadian lawyers have almost doubled since the 1970’s. The shift from entry by apprenticeship to entry by University degree can be seen as one way in which numbers have swelled.
- 24.
Abel (1982).
- 25.
Abel (1989b), p. 123.
- 26.
- 27.
See generally, Susskind 2010, Chaps. 3 and 4.
- 28.
Susskind (2007).
- 29.
As he admits himself—Susskind 2010, pp xvii-xix.
- 30.
Hartman (1993).
- 31.
Hartman (1993), p. 422. It was also reported that insurance companies continued to recruit lawyers over insurance clerks to meet any contingent demand for legal services, because the over-supply of lawyers made them cheaper to recruit.
- 32.
Commercial Attorneys are construction professionals such as surveyors, architects and engineers who have also undertaken post graduate legal qualifications.
- 33.
Marcos (2000).
- 34.
In recent years Multi Disciplinary Practices where lawyers and other professionals may work together in the same firm have become possible in many jurisdictions.
- 35.
The leading international consumer organisation is Consumers International—see http://www.consumersinternational.org/.
- 36.
- 37.
Paterson (1988), p. 101.
- 38.
Flood and Caiger, (1993) pp 425–440.
- 39.
Benson (1995), pp 490–497.
- 40.
For a discussion of early lawyer resistance to arbitration see Grossman 1939–1940.
- 41.
Benson (1995), p 492. See also Auerbach 1983, chpt 4 for a stimulating review of the early 20th Century spats between lawyers and businessmen in the context of arbitration.
- 42.
From 36% of American Arbitration Association cases in 1927 to 91% in 1947: Auerbach 1983, p. 111.
- 43.
Meason and Smith (1991), p 26.
- 44.
Auerbach (1983), chpt 4.
- 45.
For a critique of the escalating legalities and costs of international commercial arbitration see Durcan (2008); Seidenberg (2010); For arbitration in Eastern Europe, see Salpius (2006), p. 46. See also Cheung (1999) for a discussion of related matters in Hong Kong. My own research in the Scottish construction and commercial sectors has revealed that lawyers themselves are vocal about the escalating costs of arbitration—Agapiou and Clark (2011); Clark and Dawson (2007).
- 46.
See Chap. 1, Sect. 1.1.1.
- 47.
Mays and Clark (1996).
- 48.
- 49.
Agapiou and Clark (2011), p 175.
- 50.
- 51.
- 52.
Macfarlane (2001), chpt. III.
- 53.
Others in favour of the process uncovered in the research were more pragmatic and balanced in their attitudes towards mediation, while yet others who were mandated to participate in the programme were manipulative, dismissive or oppositionalist in their outlook—Macfarlane (2001), chpt. III.
- 54.
Such as Goffield et al (1999), p 231; Lande 2000, Sect. 5.
- 55.
At Sect. 2.5.3.
- 56.
See the discussion in Chap. 2 at Sect. 2.6.1.
- 57.
McEwen et al (1994), pp 156–163.
- 58.
Hensler 2003, pp 190–192.
- 59.
See generally Macfarlane (2008).
- 60.
- 61.
For a review of evidence see Daicoff (1997), pp 1345–1349; Riskin (2002), part I. The issue of mental health has received significant attention of late in the USA, with organisations established specifically for members of the legal profession suffering from depression—see http://lawyerswithdepression.com/depressionstatistics.asp Accessed 1 November 2011. A recent survey of Australian lawyers suggested that some 15% suffered moderate to extreme levels of depression—see Collings (2009). Such problems may be exacerbated by the inclement financial climate that lawyers may often be working in currently.
- 62.
- 63.
Lande (2000), p. 158.
- 64.
Canadian Bar Association (1989), p. 4.
- 65.
Subrin (2002/2003).
- 66.
Galanter (1985), p. 12.
- 67.
See Chap. 2 at Sect. 2.6.1.
- 68.
Relis (2009); Pel and Combrink (2011). It has also been suggested that participation in mediation may also be seen as less of a risk for lawyers than in standard adjudicatory processes because a poorer result in mediation may not, in the client’s mind, emanate from a lawyers’ substandard professional performance, as would perhaps be the case where perceived poor outcomes result from advocacy in court—Hensler (1999), p. 17.
- 69.
An associated point here is the fact that given the significant reduction in civil trials in many jurisdictions, mediation may in fact provide a rare opportunity for lawyers to practice their advocacy skills.
- 70.
See the discussion in Chap. 2 at Sect. 2.3.3.
- 71.
Hensler (2003), p. 183.
- 72.
See the discussion in Chap. 4 at Sect. 4.3.2.2.
- 73.
Matti et al (2006).
- 74.
Something reportedly increasingly common in Scotland—discussion with John Sturrock of Core Mediation, 2010.
- 75.
See the discussion in Chap. 1 in Sect. 1.2.
- 76.
Nolan-Handley (2002), p. 242.
- 77.
See Chap. 1 at Sects. 1.1.1 and 1.1.2.
- 78.
The representative body for Scottish solicitors.
- 79.
Clark and Mays (1996), p. 33.
- 80.
Clark and Mays (1996), p. 33. The research was sponsored by the Scottish Office of the UK government.
- 81.
The professional bodies respectively for English barristers and English solicitors.
- 82.
Robert (1992), p 258. But see Mistelis (2006) suggesting that the earliest developments in English mediation emanated from lawyers.
- 83.
Bedlam Report (2001); Brown Report (2001).
- 84.
Roberts (1992), p.258.
- 85.
- 86.
See the discussion in Chap. 1 at Sect. 1.2.3.
- 87.
Law on mediation for both domestic and cross-border disputes on Dec. 16, Law 3898/2010.
- 88.
Under the terms of Section 15a of the German Introductory Code to the Code of Civil Procedure (EGZPO). It should be noted though that under the Draft Law to implement the recent EU Directive on Mediation, it has been proposed that lawyer representation of parties in mediation only be allowed with the consent of the other party—an issue that has generated significant lawyer disquiet—see Duve (2011).
- 89.
Act 103 of 1991, s2(1).
- 90.
- 91.
In the UK, for example, under such bodies as the Civil Mediation Council (for England and Wales) and the Scottish Mediation Network (for Scotland).
- 92.
The District of Columbia is one exception.
- 93.
Once a case is listed, some states stipulate that only mediators on the roster may be used—e.g. the State of Georgia.
- 94.
Information on the various US State roster requirements was sourced from the Institute of Government, College of Professional Studies at the University of Arkansas 2010.
- 95.
A recent survey by the American Arbitration Association found that 63% companies surveyed and 73% percent of Fortune companies attributed their use of mediation to court referral, American Arbitration Association 2006, pp 19 and 28.
- 96.
See discussion in Chap. 4 at Sect. 4.2.3.
- 97.
Mulcahy (2001), p. 205. See also pp 209–211.
- 98.
Prince and Belcher (2006), pp 30–34.
- 99.
See Chap. 1 at Sect. 1.2.2.5.
- 100.
Cheung (2010), p. 69.
- 101.
Available at http://www.tpprf-arb.ru/en/documents/list-of-members Accessed 1 November 2011.
- 102.
Ristin 2010.
- 103.
Hillig and Huhn (2010), p 49.
- 104.
Article 4.4 of the decree no 222 of 2004.
- 105.
See, for example, the dominance of lawyers in the World Intellectual Property Organization, Domain Name Dispute Panel (this panel includes mediators, arbitrators and experts).
- 106.
Directive 2008/52/EC.
- 107.
September 7, 2011 (case C-464/11).
- 108.
The issue is also important in the sense of determining whether lawyer-mediators should be governed by their own professional rules while engaged in mediation. This also raises questions as to the appropriateness of existing lawyer professional rules and ethical guidelines to deal with mediation practice. These matters are dealt with in Chap. 6.
- 109.
For a potted discussion of the history of unauthorized practice of law in the USA see Nolan Handley 2002.
- 110.
Abbot (1998), p. 250.
- 111.
Burnet (2007) (paralegal found to have committed unauthorized practice of law, inter alia, for activities in context of family mediation).
- 112.
Such as in Germany—see Alexander et al (2006).
- 113.
Menkel-Meadow (1996), p. 57.
- 114.
Menkel-Meadow (1996), p. 57.
- 115.
See the discussion in Chap. 5 at Sect. 5.3.2.
- 116.
American Bar Association (2002).
- 117.
Cooley (2000 ).
- 118.
Menkel-Meadow (1996).
- 119.
Drafted by the Department of Dispute Resolution Services of the Supreme Court of Virginia, and the North Carolina Guidelines for the Ethical Practice of Mediation and to Prevent the Unauthorized Practice of Law, adopted by the North Carolina Bar in 1999.
- 120.
See, for example, Schwartz (1999), p. 1737.
- 121.
American Bar Association (2002), para 5.
- 122.
American Bar Association (2002), para 6.
- 123.
Alexander et al (2006), p. 33.
- 124.
S 2 Abs. 3 Nr. 4.
- 125.
It should be noted that in some contexts mediation results in ‘principled’ but legally non-enforceable agreements.
- 126.
American Bar Association (2002), section headed, “drafting legal agreements”.
- 127.
See the discussion in Chap. 5 at Sect. 5.3.
- 128.
See the discussion in Chap. 2 at Sect. 2.3.
- 129.
See Goldfien and Robbennolt (2007), pp 285–286.
- 130.
The many reasons why lawyers often prefer lawyer-mediators are explored in Chap. 4 at Sect. 4.3.5.
- 131.
This can be termed the practice of ‘settlement brokering’ a long recognised practice in which law firms reward mediators who settle cases swiftly, increasing settlement stats for the firm, Kovach 1997, p. 26.
- 132.
Lande (1997), p 847.
- 133.
- 134.
Russell (2007).
- 135.
Gould (2010), pp 10–11.
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Clark, B. (2012). Lawyer Involvement in Mediation and the Co-Option Thesis. In: Lawyers and Mediation. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-23474-3_3
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