The acronym ‘ADR’ often evokes a sense of dread among lawyers, interpreted not as ‘Alternative Dispute Resolution’ but as an “Alarming Drop in Revenue.” However, this need not be the case. My early career as a trade union attorney in the 90’s exposed me to the Mediation and Conciliation Centre (MCC), and later as a part-time Commissioner of the CCMA, I embraced mediation as a constructive approach to conflict resolution. Despite the initial resistance to the Labour Relations Act of 1995, labour law attorneys have adapted and thrived.
The question arises: Are lawyers inhibitors or facilitators of mediation? The answer is that they can be both, but the choice is theirs to make. The prevailing mindset among many South African family and divorce lawyers is akin to Mark Twain’s observation: “To a man with a hammer, everything looks like a nail.” This resistance to mediation is not unique to South Africa; it is a global issue that has hindered the growth of mediation since its modern resurgence in the 1960s in the United States.
In a world rife with conflict and discord, the legal profession does not have to contribute to the chaos. Mediation offers a more humane, cooperative, and efficient way to resolve disputes, particularly in the realm of family law. While some lawyers have embraced this approach, many remain still skeptical or even hostile toward it.
The South African family law system is in dire need of real reform. It is often seen as confrontational, insensitive, and largely unpopular. The adversarial nature of our legal system often exacerbates emotional issues that are not legally relevant and therefore not suitable for litigation. Mediation offers a more compassionate, efficient, and cost-effective alternative.
The Resistance to Mediation: Unpacking Lawyers’ Concerns
The reluctance among lawyers to adopt mediation stems from various factors, some legitimate and others less so. Among the less valid reasons are:
- Lack of understanding or misconceptions about the mediation process
- Cultural resistance due to ingrained legal practices and norms
- Financial self-interest and the fear of reduced earnings
- Skepticism about the effectiveness of mediation
More legitimate concerns include:
- Questions about the quality of mediation services
- Lack of demand from clients
- Worries about the misuse of the mediation process by opposing parties
Global Trends: The Reluctance is Not Just Local
Studies in England, Wales, and the Netherlands indicate a general reluctance among lawyers to refer clients to mediation. These findings align with broader international research, suggesting that lawyers worldwide are often hesitant to adopt mediation as a dispute resolution method.
Public Perception: The Image Crisis Facing Lawyers
While individual clients may express satisfaction with their lawyers, the overall public perception of the legal profession is less than flattering. Lawyers are often the butt of jokes and are frequently portrayed negatively. This tarnished image is exacerbated by the fact that people often seek legal services during emotionally and financially challenging times, such as divorce.
The negative public perception should not, however, cloud our judgment when evaluating lawyers’ engagement with mediation. The legal profession operates in a space filled with emotional and financial turmoil, which naturally invites criticism. However, this should not deter us from advocating for a more humane and effective approach to dispute resolution.
The Role of Lawyers as Gatekeepers to Mediation
Lawyers are often described as the ‘gatekeepers’ to the development of mediation. The idea is that for mediation to gain traction, lawyers must endorse and legitimise it. While empirical studies confirm that lawyers can influence their clients’ perception of mediation, the extent of this influence varies considerably.
Interestingly, research indicates a growing receptivity among lawyers toward mediation. However, this increased openness does not necessarily translate into more case referrals to mediation, unless mandated by the courts.
Clients and Their Resistance to Mediation
When questioned about the slow adoption of mediation, lawyers frequently point to client resistance as the obstacle. They argue that they are unable to convince their clients of mediation’s benefits, even if they themselves see its value.
A German survey found that 85% of mediators and 67% of lawyers believed that a lack of client awareness was hindering the growth of mediation. Clients may resist mediation because they seek a ‘champion’ to fight their battles or prefer a formal judgment to resolve their disputes.
Understanding the dynamics of the lawyer-client relationship is crucial for assessing who holds the decision-making power in how disputes are managed and resolved.
The Historical Context
Traditionally, the legal profession has sought to maintain a power imbalance in the lawyer-client relationship, positioning themselves as experts while treating clients as uninformed laypersons. This dynamic is reinforced through the use of specialised legal language and practices, creating a knowledge gap that lawyers can exploit to maintain control over their clients.
The Lawyer-Client Dynamic in Dispute Resolution
Lawyers often serve as the primary source of information for their clients about the legitimacy of various dispute resolution methods. Studies, including those conducted in Israel, suggest that lawyers usually control the decision to mediate, rarely discussing it unless prompted by the court.
Research in France also supports the idea that lawyers, due to their dominant position, are the primary decision-makers when it comes to opting for mediation. This control extends to all aspects of dispute resolution, leading to the perception that lawyers are a barrier to the broader adoption of mediation.
However, it is important to note that this dynamic is not universal. Research shows that more sophisticated and empowered clients are less likely to be controlled by their lawyers. In such cases, lawyers act more as ‘navigators,’ where the client sets the destination, but the lawyer advises on the best route to take.
Joseph Handler’s observations underscore this point, noting that while lawyers dominate relationships with poor or unsophisticated clients, “strong, rich, and confident clients direct their lawyers.”
Financial Considerations
One of the underlying arguments against lawyers’ enthusiasm for mediation is the perception that it poses a financial threat to their practice. Len Riskin once stated that “many lawyers, if they thought about it, would see mediation as an economic threat.” While mediation is often touted as a cost-effective alternative to litigation, empirical evidence supporting this claim is mixed.
Lawyers and Financial Concerns
The Scottish Consumer Council, while discussing barriers to mediation, noted that some lawyers might resist recommending mediation to their clients due to fears of financial loss. This sentiment is echoed across Europe. A leading French arbitrator stated, “There is a reluctance to use mediation in [Europe]. The reason being loss of potential income… mediation is simply not as lucrative for legal advisors.”
In Denmark, lawyers have expressed concerns that increased mediation could lead to a decrease in litigation, thereby affecting their income. Similar sentiments have been observed in jurisdictions where mediation is more established, such as Australia. There, it was noted that while some lawyers were open to mediation, many were content with the “comfortable and profitable status quo” and had little interest in disturbing it.
Economic Interests and Professional Practices
The argument that lawyers’ approaches to dispute resolution are influenced by economic considerations has some empirical backing. Lawyers who bill by the hour may prefer prolonged litigation not just to strengthen their clients’ negotiating positions but also to increase their own earnings. Christopher Mayson pointed out that an hourly billing system rewards inefficiency and even incompetence, as it incentivizes lawyers to generate as many billable hours as possible.
Ignorance and Cultural Resistance
The notion that lawyers are ignorant about mediation is often cited as a barrier to its broader adoption. However, this argument seems increasingly untenable given the decades of publicity and promotion that mediation has received globally.
In the United States, John Dzienkowski argues that lawyers’ resistance to mediation stems from a deep-rooted belief in the adversarial system. Any change to this system is met with resistance due to the psychological discomfort that often accompanies change. Similarly, in Italy, it has been suggested that lawyers view any challenge to the traditional legal system as taboo.
Lawyers and Adversarial Culture
Lawyers are trained and socialised into an adversarial legal culture that emphasises partisan, competitive, and aggressive behaviours. This culture often promotes the resolution of disputes through litigation and positional bargaining, rather than more collaborative and harmonious methods like mediation.
The Role of Legal Education
Legal education plays a significant role in shaping a lawyer’s approach to practice. However, mediation often occupies a marginal place in the core legal curriculum. Don Peters notes that in the United States, 91% of the core law curriculum is focused on traditional legal content, and a staggering 73% of law students receive no exposure to non-adversarial, interest-based bargaining processes. If this is the case in a jurisdiction that is considered advanced in terms of mediation, the outlook for less developed legal systems appears grim.
Concluding Remarks
Lawyers are likely to continue playing a significant role in the field of mediation. However, shifts in the legal market and increasing client awareness could drive growth in mediation practices. Some clients are already beginning to assert more control over how their disputes are resolved, signaling a shift in the traditional lawyer-client power dynamic.
In the realm of family law, mediation remains a matter of personal preference among litigators. Some see it as a last resort for cases they expect to lose, while others view it as an opportunity for informal negotiation or even as a “fishing expedition” to gain insights into the opposing party’s financial situation.
There is a clear need for education aimed at lawyers to not only inform them about the benefits of mediation but also to address behaviours that hinder its effective implementation. Educated lawyers can then, in turn, guide their clients— the “true disputants”—toward more effective communication and resolution of their disputes, creating a win/win outcome for all parties involved.
Former Supreme Court Judge in India, R.V. Raveendran, once said, “But, who will make mediation successful? The government is not going to do it. The lawyers will not encourage it. The litigant is not in a position to understand the benefits of mediation and conciliation. So, it is for the judges to take the lead in making litigants understand the value of mediation.”
In closing, the words of Acting Judge Brassey in the case of Brownlee v Brownlee (August 2009, South Africa, South Gauteng High Court) are apt: “How much richer would this solution have been had it emerged out of a consensus-seeking process rather than in adversarial proceedings… The saving in time and legal costs would have been significant and, once a few breakthroughs had been made, I have every reason to believe that an overall solution would have been reached.”
This underscores the potential of mediation not just as a tool for dispute resolution but as a paradigm shift in how we understand and practice law. For this shift to occur, however, lawyers must be willing to step outside their traditional roles and embrace more collaborative and client-centered approaches.
Written by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town. A blog, managed by Lawsplash, for more information on Family Law read more here.