Changing the Frame: Some Challenging Issues for Promoting Mediation
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For me, this book provided several light bulb moments. I suspect that, for many of us, it may suggest that we may have been approaching the promotion of mediation in quite the wrong way. The main thrust is that the EU, in its attempts to promote its mediation Directive, has framed mediation as an alternative to litigation. However, having carried out research among those who are actually responsible for choosing whether or not to use mediation as a means to help resolve cross border commercial disputes, namely in-house legal advisers in mainly large companies, the author has discovered that this framing does not resonate with them.
In fact, for these decision-makers, the reference point should be negotiation, not litigation. They view mediation as an extension of the negotiation process in which they all engage much more than any other dispute resolution method. Litigation is after all relatively rarely used in most commercial (or indeed any) dispute resolution. Negotiation is the standard process for most people. For those of us who have always viewed mediation as a way to help parties whose negotiations are stuck, this seems an obvious point. But, although we may see it that way, most of us have argued for mediation’s use by comparing it with the time, costs, risks, adversarialism and loss of control inherent in an adjudicative process. And, like the EU, we’ve called for proposals which address these. This may suit those who wish to reduce civil justice budgets but it may fundamentally miss the point about the value which mediation adds, in and of itself.
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