Much has been done to encourage parties to prefer negotiation over litigation and arbitration. However, change has been slow in most countries. We need to step back and consider how progress can be accelerated[ii].
Mediators teach us ‘to go slow to go fast’[iii] and ‘to analyse the problem before jumping to solutions’. In our enthusiasm to promote consensual outcomes, are we trying to go too quickly, too soon? It may benefit us to reconsider the issues, then seek creative solutions. We need to explore why many parties hesitate to negotiate, preferring (and risking) the adversarial route.
Why has change been disappointing?
Most disputes are resolved consensually without lawyers. Even when lawyers are involved, most are resolved amicably, (though often at a late stage after most costs have been incurred)[iv]. The few that do not achieve an agreed outcome are harder to resolve, and default to a Court or Tribunal decision. Interest-based negotiation and mediation in these tougher situations are only widely practised in relatively few places.
The reasons seem cultural. We have traditionally preferred power, war, strikes, boycotts, threats and intimidation to resolve conflict. The self-perceived strongest party seeks to win. This translates to the rights-based approach inherent in litigation and arbitration. Only when the risk of not succeeding surfaces do parties consider a consensual process. Even then, they can struggle to abandon adversarial and positional instincts. As psychologist Abraham Maslow observed, it is tempting, if your only tool is a hammer, to treat every problem as if it were a nail.
We all find conflict challenging. We often do not appreciate that we can achieve outcomes through negotiation that are less risky, faster and less costly than litigation.[v] Even when we privately know this, we may lack the knowledge, skills and experience to get to a negotiation or mediation table.
We may have underestimated how deeply ingrained our conflict resolution culture is, or how much needs to be done and how long it will take to change. While “push” initiatives like court-related mediation, case management systems and process steps to encourage mediation all make a significant difference, and have contributed to a growth in mediation, we must also address the underlying causes. That means addressing cultural change in legal practice.
Cultural change in legal practice
Lawyers and Judges are primary gatekeepers to the use of court-related mediation. Yet one of the most important conclusions from the data harvested from the approximately 4,000 voting delegates around the world during the Global Pound Conference Series 2016-17 was:
All stakeholder groups identify Advisors (predominately private practice lawyers) as the primary obstacle to change in commercial dispute resolution practice. The lawyers showed the self-awareness to also identify themselves as the group most resistant to change[vi].IMI GPC Global Trends and Regional Differences Report
Judges were also identified as an obstacle to change. It is a cultural issue. Many lawyers and Judges are so accustomed to tried and true adversarial processes that a rights-based solution appears to them the only option. Of course, not all cases can be resolved consensually – for example when legal or constitutional precedents need to be established or a rights-based outcome is preferred by a weaker party against a stronger one unwilling to negotiate. But a better appreciation of the merits of consensual outcomes over adjudicated ones should be systematically inculcated into legal and judicial training.
With training, Judges may better appreciate that early negotiation and mediation can reduce their case load, giving them more time for cases that must be litigated and directing limited Court resources to cases that provide fair and faster justice to the weak and powerless.
The situation with lawyers is different. Clients, typically, defer to their lawyers. The word “client” derives from the Latin noun “cliens”, meaning “dependent”. Dependency is a power. Most lawyers would admit to having an ethical duty to use this power responsibly, regardless of whether that duty is enshrined in their professional code. Responsible professional behaviour includes recommending to clients alternatives to litigation, such as negotiation and mediation, whenever appropriate. It should not be necessary for civil procedure rules to apply a big stick, such as adverse cost awards, to prevent abuse of this power. Advanced training in modern negotiation theory and practice would help lawyers perceive how best to help their clients achieve quicker, more valuable outcomes.
Lawyers would also benefit from the knowledge and skills to represent clients in negotiation and mediation. Apart from advising parties on whether and when to mediate, there are fees to be earned in drafting and negotiating agreements to mediate, helping parties to prepare for mediation, representing them in mediation, drafting and negotiating settlement agreements and becoming mediators themselves. This requires a different kind of training. It also requires a different attitude, namely that the reputation of a lawyer fundamentally depends on achieving what clients need, resolving cases early, saving costs and managing risk. The resulting enhanced reputation will generate more clients, repeat business and greater professional prosperity.
With mediation training for Judges and lawyers, dispute resolution practice will morph from gladiatorial towards problem solving. This will open the market for reducing clients’ risks and costs by negotiating and mediating. There are also financial advantages for lawyers to a quicker turnover of cases and outcome-based fee arrangements[vii].
Other professionals and business managers will also benefit from similar training to understand the potential cost savings in early interest-based dispute resolution and to insist their lawyers achieve early outcomes. Parties will benefit from learning about the underlying causes of conflict and finding creative solutions through negotiation. This should start in the home and at pre-school, and throughout primary and secondary education. Changing conflict culture should be a central part of every school’s life skills curriculum, encouraged by parents, teachers and peer mediator ‘fuss busters’.
To realise the cultural change, we must improve the way society addresses dispute resolution. The legal professions and their educators need to adopt a new, comprehensive, multi-faceted approach. Recognising that there is more to lawyering than technical legal knowledge and advocacy skills is now essential. Clients want cost-efficient outcomes, not lengthy process. There is a growing client perception that litigation and arbitration are not only tedious and expensive, but also risky. Successful lawyers in the modern world are those that attract clients not only because they are excellent lawyers, but in particular because they can reduce risk, save cost and can deliver faster results through negotiation and mediation. This requires new legal cultures, skills and attitudes. The client perception of dispute resolution lawyers is not positive, as the Global Pound Conference data indicated, and lawyers themselves are acutely aware of this. It is time to change, and to grow and prosper with that change.
[i] John Brand is a lawyer and retired consultant and ADR specialist at Bowmans in South Africa. He is also a director of Conflict Dynamics in Sandton, Johannesburg. He serves on the ADR Advisory Committee of the South African Law Reform Commission and is on the Executive Committee of the National Dispute Settlement Practitioners Council. John is an IMI Certified Mediator and a member of IMI’s former Independent Standards Commission and is a CEDR-accredited mediator. He has specialised in dispute resolution and the training of negotiators, mediators and arbitrators, has written extensively in journals and other publications and co-authored “Commercial Mediation – a User’s Guide” and “Labour Dispute Resolution” both published by Juta. Over the past 30 years, he has arbitrated and mediated many large commercial and employment disputes and he regularly facilitated negotiation, strategic planning and transformation processes. He was a member of the team of international experts appointed by the International Labour Organisation (ILO) to design mediation training for developing countries and he regularly trained mediators from countries in Africa, Asia, Eastern Europe and South America. The ILO also commissioned John to design training material and to train parties and trainers from countries across the world in mutual gain negotiation. This training material has been translated into French, Portuguese and Arabic and is used extensively throughout the world.
[ii]As expressed by Professor Thomas J. Stipanowich, Director of the Straus Institute for Dispute Resolution at Pepperdine University: “…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.” See Stipanowich “The International Evolution of Mediation: A call for dialogue and deliberation” Kluwer Arbitration Blog, June 2, 2016.
[iii] See Roger Fisher and William Ury “Getting Past No: Negotiating with difficult people” (1992)
[v] For a recent high profile example of where parties can reach negotiated or mediated outcomes that are of more value to both than the best that they could achieve in a litigated outcome, click here.
[vi] Global Pound Conference Series: Global Data Trends and Regional Differences page 15, available here.
Global Data Trends and Regional Differences
[vii] See Julie MacFarlane “The New Lawyer: How settlement is transforming the practice of law” (2008).
Originally published via Mediate.com on June 26 2020. Republished with permission.