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Deliberating on the Future of Mediation

By: Tom Stipanowich, IAM Honorary Fellow & Karinya Verghese^{^*}

Email: Thomas.Stipanowich@pepperdine.edu & karinya@karinyaverghese.com Posted: March 8, 2016

Over the past 30 years, there has been an explosion in the use of mediation. In Tom’s latest published article, “The International Evolution of Mediation: A Call for Dialogue and Deliberation,” he observes that the “mounting global preoccupation” with mediation has resulted in a proliferating array of institutions, programs, laws and regulations; an international “evangelical” movement; and growing impetus for an international convention promoting the recognition and enforcement of mediated settlement agreements. What has been lacking, however, is any form of collective reflection, dialogue and discernment regarding where we have come to and where we are going. These concerns are addressed extensively by the article.

Consider the following questions, all of which should be of importance to commercial mediators and those they serve:

What is our fundamental understanding of the nature and practice of mediation?
What techniques and approaches are most effective and appropriate in addressing the needs of mediating parties?
How are lawyers changing mediation? What is the appropriate interplay between client and counsel in making process choices?
How pervasive is the influence of culture and legal traditions on the mediation process?
How should we address the growing interaction between facilitation of settlement and processes of adjudication?
How should we handle the challenges and opportunities presented by current mega-trends, including the technological revolution, research involving neuropsychology, the mining of big data, and initiatives aimed at institutionalizing or professionalizing mediation?
Is there room to expand our deployment of mediation skills and insights “upstream” (that is, early and pre-litigation) for the purpose of sustaining and improving relationships?

Of particular interest to IAM members, the article exposes some fascinating regional differences in mediation practice that were discovered in the 2014 IAM/Straus Institute Survey on Mediator Practices and Perceptions. Notable areas of apparent regional divergence include the relative use or non-use of joint sessions; how mediators handle information received from the parties in caucus; and mediator evaluation and opinion giving. The article also employs IAM data in examining the evolving role and impact of attorneys, positive and negative, in mediation.

Yet another section examines the wide disparities in laws and practices in different cultures and legal systems. Special emphasis is placed on what is – and is not – happening in China, and in emerging economies like Brazil, which just passed a mediation act that is highly prescriptive and appears to infringe significantly on party autonomy.

Culture is also identified as a primary factor in approaches to the handling of med-arb, arb-med, consent awards, “guided choice,” and other kinds of interplay between settlement-oriented approaches and forms of adjudication.

Finally, the article encourages a broadened “upstream” focus for employing the skills and insights of mediators, suggesting that “embedded facilitators” may do much to maintain or improve long-term relationships.

The article is a revised and expanded version of lectures delivered by Tom as the New Zealand Law Foundation’s International Dispute Resolution Visiting Scholar. The full text of the article is at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2712457.

Readers are encouraged to offer comments on the questions above, and respond to the observations and conclusions raised in the article.

Stay tuned for additional IAM Blog postings teasing out interesting information from the IAM/Straus Institute survey, including an upcoming post on the survey data regarding the use of joint sessions and caucuses.

* Thomas J. Stipanowich is the William H. Webster Chair in Dispute Resolution, Professor of Law, Pepperdine University School of Law and Academic Director, Straus Institute for Dispute Resolution. Karinya Verghese, LL.M. in Dispute Resolution (2014), is the Straus Institute Research Fellow (2015-2016) and an Independent Commercial Mediator and Conflict Resolution Consultant in Los Angeles.

Please note that each IAM Blog posting represents the view of its individual author, but not necessarily others associated with IAM. IAM Blog Editor Keith L. Seat may be contacted at kseat@keithseat.com.