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Attorneys' Perspectives of Mediation

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Attorneys' Perspectives of Mediation ATTORNEYS’ PERSPECTIVES OF MEDIATION: AN EMPIRICAL ANALYSIS OF ATTORNEYS’ MEDIATION REFERRAL PRACTICES, BARRIERS AND POTENTIAL AGENCY PROBLEMS, AND THEIR EFFECT ON MEDIATION IN ISRAEL A THESIS SUBMITTED TO THE STANFORD PROGRAM IN INTERNATIONAL LEGAL STUDIES AT THE STANFORD LAW SCHOOL STANFORD UNIVERSITY IN PARTIAL FULLFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF THE SCIENCE OF LAW By Ayelet Sela April 2009 ABSTRACT My research examines attorneys’ views about mediation and their effect on the use of mediation in Israel. The paper contributes to closing some aspects of the knowledge gap regarding barriers to the adoption of mediation as a prominent method of dispute resolution in Israel. This empirical study is based on a survey of 140 civil litigators in the Tel Aviv district that was conducted in February 2009, four months after a new mandatory court-connected mediation program was introduced in magistrate courts. The findings of the survey reveal that some of the fundamental assumptions that guided the design of the new mandatory mediation program were inaccurate. The survey portrays a reality in which most civil litigators have had some experience with mediation, but do not refer cases to mediation on a regular basis. Once mediation is used, Israeli attorneys exhibit a clear preference for evaluative mediation processes over other mediation styles. The findings confirm the hypothesis that Israeli attorneys act as gatekeepers to mediation; they control both which cases go to mediation and the nature of the subsequent mediation process. The analysis further suggests that an agency problem that causes lawyers to act as barriers to the use of mediation might exist. Given the attorneys’ dominant influence, or even control, over the decision to use mediation as well as their financial interests and personal professional preferences, it seems that some attorneys refrain from referring cases to mediation based on self- interest. Finally, the paper suggests several regulatory, financial and educational measures to remove attorneys’ financial and perceptual barriers to using mediation. It is hoped that these findings and other conclusions of the study will contribute to the assessment and design of future mediation programs in Israel. ii TABLE OF CONTENTS I. Introduction ............................................................................................................................. 1 II. ADR and Its Incorporation into Legal Systems ....................................................................... 4 III. The Development of Mediation in Israel ................................................................................ 7 A. The Institutionalization of Mediation in Israel .................................................................. 7 B. Pre-Mediation Information Acquaintance and Coordination Session (IAC) .................... 11 C. Problems in the Design Process of the IAC Program ...................................................... 12 IV. Attorneys as Gatekeepers of Mediation ............................................................................... 14 A. The Role of Attorneys in Mediation ............................................................................... 14 B. Barriers to Attorneys’ Use of Mediation ........................................................................ 16 C. Potential Agency Problems in Choosing A Dispute Resolution Method ......................... 18 V. Methodology ........................................................................................................................ 21 A. Population and Sampling Process .................................................................................. 21 B. The Questionnaire ......................................................................................................... 22 C. Distribution ................................................................................................................... 23 D. Return Rate ................................................................................................................... 24 E. Comments on the Nature of the Analysis ....................................................................... 24 VI. Attorneys’ Views and Practices of Mediation ...................................................................... 25 A. General Demographic Information about the Respondents ............................................. 25 B. Attorneys’ General Referral Practices and Views of Mediation ...................................... 28 C. Attorneys’ Views on the Effectiveness of Using Mediation in Civil Cases ..................... 33 a. Familiarity With Mediation and Likelihood of Use .................................................... 33 b. Voluntary Inclusion of Mediation Clauses ................................................................. 35 VII. Barriers to Attorneys’ Discussion and Use of Mediation .................................................... 36 A. Clients’ Refusal to Use Mediation ................................................................................. 36 iii B. Lack of “Good” Mediators in the Market ....................................................................... 37 C. The Structure of the Legal System and Actors in the Market .......................................... 38 D. Negative Experience with Mediation in the Past ............................................................ 39 E. Preference for Mediation Compared to Other Dispute Resolution Methods .................... 41 a. Lack of Preference for Adjudication and Third-Party Decision-Making Power ........... 41 b. Preference for Direct Negotiations and Litigation-Related Settlements ....................... 43 c. Resources: Time and Profits .......................................................................................... 46 a. Time .......................................................................................................................... 46 b. Short and Long Term Profits ...................................................................................... 48 VIII. Control and Agency in The Decision to Use Mediation ..................................................... 50 A. Power and Influence over the Decision to Use Mediation ............................................... 51 a. Attorneys’ Overall Influence in Mediation ................................................................. 51 b. Power over the Decision to Use Mediation ................................................................. 53 c. The Orientation of the Factors that Attorneys Consider .................................................. 57 a. Financial Factors ....................................................................................................... 57 b. The Attorney’s “Standard Philosophical Map” ........................................................... 60 IX. The IAC Program in View of the Survey Results ................................................................. 66 A. Attorneys’ Experiences and Impression of the IAC Session ........................................... 68 B. Evaluating the Design of the IAC Program in View of the Results ................................. 71 1. The Mandatory Element ............................................................................................ 72 2. The Structure of the IAC Session ............................................................................... 72 3. The Content of the IAC Session ................................................................................. 73 C. Increasing the Use of Mediation in Israel: Further Suggestions ...................................... 74 a. Mediation Education and Training ............................................................................. 75 b. Setting Standards or Models for Attorney Fees in Mediation ...................................... 76 X. Conclusion ........................................................................................................................... 77 iv Appendix 1: Additional Figures and Tables ............................................................................... 80 Appendix II: The Questionnaire ................................................................................................ 85 Bibliography ............................................................................................................................. 93 LIST OF FIGURES Figure 1: Respondents’ Experience Practicing Law ................................................................... 26 Figure 2: The Number of Case Mediated in the Previous 2 Years .............................................. 30 Figure 3: Mean of Cases Mediated in the Past 2 Years by Years of Experience .......................... 31 Figure 4: Who Most Commonly Suggests Using Mediation ...................................................... 32 Figure 5: Correlation Between Number of Cases Mediated and Views on the Effectiveness of Mediation ................................................................................................................................. 34 Figure 6: Lack of Good Mediators in the Market Influenced the Decision not to Refer Cases to Mediation ................................................................................................................................. 38 Figure 7: Decision Not to Mediate Due to Prospects of Trial-Related Settlement or Similar/Better Negotiated Agreement .............................................................................................................
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