Why Lawyers Don’t Use Mediation
BY DAVID HOSSACK AND LAURA MCKENNA
Authors David Hossack and Laura McKenna are on a quest to encourage the use of mediation among lawyers. Why are some lawyers averse to mediation? What factors might discourage them from recommending mediation to their clients? They created a survey to understand reluctance to use mediation among lawyers in Scotland.
In our quest to encourage the use of mediation among lawyers, in the course of 2021 fellow mediator David Hossack and I have provided training for lawyers and produced a series of podcasts on how to best represent clients at mediation. Amidst this, we wanted to understand more about the use of mediation by lawyers in Scotland, so we created an online survey accessible through our website and LinkedIn.
The overwhelming majority (90%) of our lawyer respondents felt that they had a good understanding of what is involved in mediation. Just over half had received training in representing clients at mediation and almost a third were trained as a mediator. Three quarters of respondents felt confident that they had the skills required to represent clients at mediation.
In terms of the use of mediation, whilst almost half had represented clients at mediation within the last 5 years, 39% had not represented clients at mediation within the last 5 years. Rather discouragingly, only 16% said that they would suggest mediation to clients in most of their cases and 13% said they would never suggest it.
Interestingly, three quarters of respondents were open to using remote mediation. Those who answered “no” to using remote mediation listed their main concerns and it is perhaps not surprising to hear that these were mostly regarding the lack of in-person interaction and the perception that this this means that body language / cues are missed. One respondent was of the view that mediation needs direct contact for success.