Arbitration Law Review Volume 5 Yearbook on Arbitration and Mediation Article 25 2013 Lawyers and Mediation Brian Rans Follow this and additional works at: http://elibrary.law.psu.edu/arbitrationlawreview Part of the Dispute Resolution and Arbitration Commons Recommended Citation Brian Rans, Lawyers and Mediation, 5 Y.B. Arb. & Mediation 409 (2013). This Student Submission - Book and Literature Review is brought to you for free and open access by Penn State Law eLibrary. It has been accepted for inclusion in Arbitration Law Review by an authorized editor of Penn State Law eLibrary. For more information, please contact [email protected]. LAWYERS AND MEDIATION Brian Rans* I. INTRODUCTION Lawyers and Mediation1 is authored by Bryan Clark, a mediation scholar at the University of Strathcylde in Glasgow, Scotland and an Adjunct Professor at John Marshall Law School in Chicago, Illinois. Clark found inspiration to write this book after researching mediation in Scotland, engaging in field work and conversing with lawyers, mediators, mediation participants and academics about lawyers’ impact on mediation.2 Lawyers and Mediation is neither an instructional book nor a book advocating for increased or decreased lawyer involvement in mediation; the book is a “cautious and balanced path through the thorny terrain of the lawyer’s relationship with and role within and on the fringes of mediation.”3 To accomplish this objective, Clark presents evidence from multiple international scholars’ empirical and theoretical studies to explain and critique arguments for and against lawyer involvement in mediation.4 Clark often decides against taking sides when presenting conflicting evidence, which frustrated me as a reader, but his pragmatism serves mediation research well since mediation growth has evolved quite differently across multiple jurisdictions. Thus, I recommend Clark’s book to individuals who are interested in reading a collection of pragmatic research, but do not recommend the book to individuals who want to read a thesis for increased or decreased lawyer involvement in mediation. II. OVERVIEW Lawyers and Mediation is comprised of six chapters. Chapter One sets forth the book’s foundation by providing an overview of how lawyer involvement in mediation has developed over time throughout the world.5 In Chapters Two and Three, Clark analyzes the legal community’s initial resistance towards participating in mediation and subsequent motives for entering the mediation field.6 Chapters Four and Five, arguably the most captivating and pertinent chapters in the book, discuss how lawyer involvement impacts mediation as a dispute resolution mechanism.7 Chapter Four analyzes research on lawyer involvement either as a party representative or mediator.8 Chapter Five discusses the institutionalization of mediation * Brian Rans is an Associate Editor of the Yearbook on Arbitration and Mediation and a 2014 Juris Doctor Candidate at The Pennsylvania State University Dickinson School of Law. 1 BRYAN CLARK, LAWYERS AND MEDIATION (2012). 2 Id. at v. 3 Id. 4 Id. 5 Id. at viii. 6 CLARK, supra note 1, at viii. 7 Id. 8 Id. 409 and the benefits and consequences resulting from this happening.9 Clark concludes the book in Chapter Six by discussing mediation’s future, including topics such as mediation education, codes of conduct and training.10 III. CHAPTER ONE: HISTORY OF LAWYERS AND MEDIATION Chapter One discusses how lawyer involvement in mediation has developed over time throughout the world.11 Clark presents research on mediation development within many jurisdictions, but fails to provide observations of the significance or success of each jurisdiction’s development, which could have made this chapter more captivating and informative. Alternative Dispute Resolution (ADR) evolved into its modern form during the 1970s after the National Conference on the Causes of Popular Dissatisfaction with Administration of Justice (Pound Conference).12 During this time period, United States Chief Justice Warren Burger and other judicial reform proponents advocated for courts to use mediation and other ADR mechanisms to improve judicial efficiency.13 Mediation purists often disagreed with this idea, preferring that courts did not interfere with or contaminate ADR.14 The United States began to formally embrace mediation after the Pound Conference and much experimentation.15 For example, in 1994, the US Postal Service established Resolve Employment Disputes, Reach Equitable Solutions Swiftly (REDRESS) to help resolve workplace disputes.16 In 1998, Congress enacted the Alternative Dispute Resolution Act that mandated federal courts establish ADR programs.17 Mediation development also occurred in professional mediation organizations such as the National Institute of Dispute Resolution and the Association of Conflict Resolution.18 Much like the United States, common law jurisdictions such as the England, Wales, Scotland, Australia, Canada and Hong Kong quickly pursued and enacted mediation initiatives after the Pound Conference.19 Trends across these common law 9 Id. 10 Id. 11 CLARK, supra note 1, at v. 12 Id. at 1-2; see also Frank E.A. Sander, Varieties of Dispute Processing, in THE POUND CONFERENCE: PERSPECTIVES ON JUSTICE IN THE FUTURE (A. Leo Levin & Russell R. Wheeler eds. 1979). 13 CLARK, supra note 1, at 3; see also Susan Sibley & Austin Sarat, Dispute Processing in Law and Legal Scholarship: From Institutional Critique to the Reconstruction of Judicial Subject, 66 DENV. U. L. REV. 437 (1989). 14 CLARK, supra note 1, at 4 (stating mediation purists want to regain control of the mediation process from the legal system and give it back to the disputants). 15 Id. at 2 (“[P]ound Conference had a major and almost immediate impact on expediting the process of mediation” in the United States. There were similar debates in Europe discussing alternative dispute resolution growth such as the Florence Access to Justice Project, but these initiatives did not have the immediate impact the Pound Conference had). 16 Id. at 7; see also Lisa B. Bingham, Why suppose? Let’s Find Out: A Public Policy Research Program on Dispute Resolution,2002 J. DISP. RESOL. 101 (2002). 17 CLARK, supra note 1, at 7; see also 28 U.S.C. § 651a-b (1998). 18 CLARK, supra note 1, at 8. 19 Id. at 9. 410 jurisdictions include expansion in court-connected mediation, increased lawyer involvement in commercial and family mediation, policy changes such as civil procedure reforms and the creation of professional organizations providing mediation services.20 Scotland is the one common law country that Clark presented research on that has not experienced substantial mediation growth.21 According to Clark, previous initiatives outside the family and commercial law contexts did not succeed due to low demand, so Scottish mediation is currently at the early stage of development with a “re-invigorated” interest from the legal community.22 Civil law countries such as the Netherlands, France, Germany and Italy have pursued mediation more slowly than their common law counterparts.23 However, research still shows strong mediation development in family and commercial law contexts and increased mediation regulation.24 For example, France requires family mediators to acquire a State Diploma for Family Mediation before practicing,25 and Italian legislation enforces mediation agreements, promotes mediation confidentiality, institutes minimum training requirements for mediators and allows judicial mediation referrals.26 IV. CHAPTER TWO: LAWYER RESISTANCE TOWARDS MEDIATION Chapter Two presents information regarding lawyer disinterest in mediation and how lawyer disinterest has affected mediation development.27 Throughout this chapter, Clark does a great job connecting the “gate keeper” theory, lawyer ignorance, cultural bias and economic motivations to lawyer disinterest in referring clients to mediation. Readers should also appreciate how Clark maintains a balanced approach while making subtle arguments. This allows the chapter to provide an objective foundation of research while helping the reader formulate opinions on the research presented. 20 Id. at 9-17; see also Shirley Shipman, Court Approaches to ADR in the Civil Justice System, 25 CIV. JUST. Q. 181 (2006); Nadja Alexander, What’s Law Got to Do with It?: Mapping Modern Mediation Movements in Civil and Common Law Jurisdictions, BOND L. REV. , Dec. 2001, at art. 5; JULIE MACFARLANE, THE NEW LAWYER: HOW SETTLEMENT IS TRANSFORMING THE PRACTICE OF LAW (2008); HONG KONG POLYTECHNIC UNIVERSITY, EVALUATION STUDY ON THE PILOT SCHEME ON FAMILY MEDIATION (2004), available at http://www.judiciary.gov.hk/en/publications/hkpu_finalreport.pdf. 21 CLARK, supra note 1, at 11-12; see also RICHARD MAYS & BRYAN CLARK, ALTERNATIVE DISPUTE RESOLUTION IN SCOTLAND (1996). 22 CLARK, supra note 1, at 12. 23 Id. at 24 (stating that civil law countries were not initially motivated by improving judicial efficiency and often considered mediation “some kind of newfangled American import that had no place in the civil law tradition”); but cf: MACFARLANE, supra note 20 (showing evidence of civil countries accepting mediation). 24 CLARK, supra note 1, at 18-22. 25 Id. at 19; see also MONIQUE SASSIER, ARGUMENTS AND PROPOSALS FOR A STATUTE OF FAMILY MEDIATION IN FRANCE (2001). 26 CLARK, supra note 1, at 21-22; see also SASSIER, supra note 25. 27 CLARK, supra note 1, at 31. 411 A. Gatekeeper Theory Lawyers have used their comparative advantage in the practice of law over laymen to influence whether clients pursue