Research Trends and Conclusions: Commercial Mediation 2013
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Trends and Changes in Mediation
In the last few years, mediations have become harder to solve due to their complexities, economic pressure and the growing sophistication of lawyers. Disputes increasingly involve very technical issues, multiple parties or have a cross-border element. This means that they often take longer to complete and, indeed, many of our respondents report that the general expectation that a mediation takes one or two days has disappeared, to be replaced with the more realistic approach that the actual ‘mediation’ occurs over one day but the parties continue to negotiate and the settlement may not be reached for weeks or months afterwards.
The economic pressure on companies, due to the global financial crisis, has also had an impact on mediation. Practitioners report that disputes are almost always reduced to a discussion of money with some feeling frustrated that negotiations are reduced to ‘trench warfare’, with parties clinging to their bottom line. The economic pressure also makes it harder for mediators to find creative solutions to problems as clients are unwilling to accept non-monetary settlements.
In countries such as the US and the UK, where mediation is commonly used, some practitioners have reported that it is lawyers themselves who are making the process complicated. Many see it as paralleling the development of arbitration, which began as a flexible method of dispute resolution but has become largely formalised. Some report that lawyers who have become used to the mediation process are sometimes very inflexible, refusing to accept the creativity that mediation allows while others report a growing tendency of lawyers to formally present their case to the mediator. However, as lawyers become more comfortable with mediation, they can more accurately brief clients and encourage others to take their disputes to mediation.
Read original articleTags: commercial mediation, economic pressure, Mediation Process
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