Changing the Frame: Some Challenging Issues for Promoting Mediation

This book review was originally published on the Kluwer Mediation Blog on 28 January 2021.

Anna Howard’s first book, ‘EU Cross-Border Commercial Mediation: Listening to Disputants – Changing the Frame; Framing the Changes’ (published by Kluwer), is an important contribution to the literature about the practice and promotion of mediation. It deserves a wide readership among academics and practitioners alike and I hope that potential readers will not be deflected by its relatively high price.

While focused on commercial mediation in the context of cross-border disputes in the EU, the book poses a number of fundamental questions for all those who have wondered about the “stubbornly low” uptake of mediation as a process for resolving disputes. Anna Howard’s meticulous research, both deep and broad, invites us to consider new angles to this perennial conundrum, particularly from the perspective of those who would actually choose to use mediation.

A Different Reference Point for Mediation?

For me, this book provided several light bulb moments. I suspect that, for many of us, it may suggest that we may have been approaching the promotion of mediation in quite the wrong way. The main thrust is that the EU, in its attempts to promote its mediation Directive, has framed mediation as an alternative to litigation. However, having carried out research among those who are actually responsible for choosing whether or not to use mediation as a means to help resolve cross border commercial disputes, namely in-house legal advisers in mainly large companies, the author has discovered that this framing does not resonate with them.

In fact, for these decision-makers, the reference point should be negotiation, not litigation. They view mediation as an extension of the negotiation process in which they all engage much more than any other dispute resolution method. Litigation is after all relatively rarely used in most commercial (or indeed any) dispute resolution. Negotiation is the standard process for most people. For those of us who have always viewed mediation as a way to help parties whose negotiations are stuck, this seems an obvious point. But, although we may see it that way, most of us have argued for mediation’s use by comparing it with the time, costs, risks, adversarialism and loss of control inherent in an adjudicative process. And, like the EU, we’ve called for proposals which address these. This may suit those who wish to reduce civil justice budgets but it may fundamentally miss the point about the value which mediation adds, in and of itself.

In doing so, we have set mediation up in competition with litigation and to a lesser extent arbitration and other adjudicative procedures. This “oppositional approach” has created awkwardness with courts and justice systems. It has made some of us seem zealous or evangelical, relying on “anti-litigation rhetoric”. And, as this book reveals, it does not resonate with users. While the author is careful to confine her conclusions to her field of study, I believe that the reasons she uncovers are likely to apply more widely. That is important because, while promoting mediation more explicitly as an assistance to parties with their negotiations opens up a much wider field of opportunity (whatever ha