This article discusses who the main gatekeepers of mediation are and why mediation should be encouraged.
Gatekeepers of mediation
Gatekeepers provide advice and advocate for the participants of a mediation. The main gatekeepers to commercial mediation are commercial lawyers/litigators. Based on a New Zealand Commercial Mediation Study, a vast majority of gatekeepers described their knowledge of mediation as extensive.
Research[1] suggests that strong awareness of mediation does not mean that all gatekeepers endorse mediation to their clients. Some commercial lawyers may even discourage mediation using their gatekeeper status. This is likely because they are more familiar with litigation.
Lawyers as gatekeepers are important in the mediation process because they bring important skills to the mediation. Such skills include:
- an understanding of legal issues and concepts;
- preparing clients for dispute resolution; and
- drafting skills.
Therefore, lawyers as gatekeepers can effectively facilitate settlements through mediation and should actively encourage mediation as an alternative to litigation. An adversarial approach, however, undermines mediation and shows a lack of understanding of the benefits of mediation as a dispute resolution process.
It is important to remember that all lawyers have an ethical obligation under Rule 13.4 of the Conduct and Client Care Rules to advise clients about alternatives to litigation where appropriate. They must always act in the best interests of clients regardless of whether it potentially reduces their earnings. For this reason, ignoring mediation may well indicate a breach of the ethical code or a belief that mediation is considered an ineffective form of dispute resolution in the situation.
Why gatekeepers encourage mediation
It is helpful to understand why gatekeepers recommend mediation to their clients. A paper presented to the 2016 Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ) annual conference noted that gatekeepers encourage mediation because they want to:
- Achieve settlement — according to a research done in 2015[2] , commercial mediators reported settling at least 70% of the cases they mediated.
- Save time — a 2012 United States Department of Justice record showed that over 100 years of litigation time was saved by using voluntary alternative dispute resolution.
- Save money — a 2012 UK construction dispute mediation survey found that 76% saved more than £25,000 and the top 9% of cases saved over £300,000. It reported “the cost savings attributed to successful mediations were significant…. Only 15% of responses reported savings of less than £25,000; and the top 9% of cases saved over £300,000…”
- Engage an experienced mediator with skills and subject knowledge who they have trust and confidence in — according to a Harvard Law School article[5], building rapport is more important to effective mediation than employing specific mediation techniques and tactics. It reported:
“According to a survey by Northwestern University law professor Stephen Goldberg, veteran mediators believe that establishing rapport is more important to effective mediation than employing specific mediation techniques and tactics.
To gain parties’ trust and confidence, rapport must be genuine: “You can’t fake it,” one respondent said. Before people are willing to settle, they must feel that their interests are truly understood.”
- Protect the parties from power imbalance — gatekeepers want mediators that can keep the process as fair as possible.
Other benefits of mediation include:
- Flexibility
- A structured and ethical process designed to preserve relationships.
- Certainty and control of the outcome for the parties.
- Confidentiality.
Mediation is very beneficial to parties that are motivated to settle and should regularly be encouraged where appropriate. Gatekeepers, particularly lawyers, should increasingly promote mediation to commercial users for further growth of mediation in New Zealand. Mandatory mediation for commercial disputes before the courts could also be introduced.
How can you find out more?
At Norling Law, we are passionate about solving commercial disputes and legal issues. We offer professional, independent, and impartial mediation services to users in a dispute.
Norling Law supports mediation as an efficient way of solving legal issues. Especially if the parties to the dispute want a negotiated outcome that remains private and confidential and puts a prompt end to the costs of having the dispute ongoing.
As mediators and gatekeepers, we assist the users to a mediation achieve their priorities throughout the mediation process and enable them to make informed decisions regarding the resolution of the disputes they are involved in.
Our mediator, Wendy Alexander, regularly assists with the facilitation of settlements through mediation.
At Norling Law, we receive a large number of commercial disputes. Commercial disputes can be extremely stressful and can often be suitable for mediation. The parties may have been negotiating directly to reach a solution that would meet the interests of both parties. However, the parties often find it difficult to reach agreement.
Using mediation is an option that could potentially resolve commercial problems quickly and efficiently. Mediation is a low-cost option to consider before deciding on whether to litigate. Traditional mediation is usually a more expensive process as it involves the users meeting physically and there are resulting costs involved with travel and booking a neutral meeting room (or rooms). Sometimes traditional mediation might not be available at all for urgent matters.
Wendy can effectively assist users of mediation with her extensive experience as a commercial mediator. Wendy is a mediator with all the skills gatekeepers want. Wendy completed training at Program on Negotiation at Harvard Law School, USA and the AMINZ. Wendy is also an Associate Member of AMINZ. This training complements the skills she already has in negotiation and dispute resolution.
Wendy often receives feedback from the mediation parties that they felt relaxed and in safe hands with the management of the dispute and that Wendy truly understood where they were coming from.
If Wendy’s expertise can be of assistance, the first step is to send us the details of your dispute here.
[1] Dr Grant Morris & Ms Daniella Schroder, LEADR/Victoria University Commercial Mediation in New Zealand Project Report, (June 2015), p5.
[2] Above at 1.
[3] Vander Veen, n14, citing: Statistical summary: Use and benefits of alternative dispute resolution by the Department of Justice, (2012). Retrieved from: http://www.justice.goc/olp/adr/doj-statistics.htm.
[4] Vander Veen, n14, citing: Gould, N., King, C. & Britton, P. (January 2010), Mediating construction disputes: An evaluation of existing practice, London: The Centre of Construction Law & Dispute Resolution, King’s College London. Retrieved from: http://www.ciarb.org/information-and resources/2010/02/17/KCL%20Mediating%20Construction%20Complete.pdf
[5] https://www.pon.harvard.edu/daily/mediation/what-makes-a-good-mediator/.
Brent is the Director of Norling Law. He has a wealth of experience in the District Court, High Court, Court of Appeal and Supreme Court. Brent is passionate about negotiating favourable outcomes for his clients and able to implement this in his daily negotiations.
Wendy has over 20 years’ experience in civil litigation in New Zealand with a main focus on construction, insolvency and debt recovery and security enforcement.