The factors influencing mediation referral practices and barriers to its adoption

Abstract

Purpose – Following an analysis of English construction lawyers’ perceptions, attitudes and practices relative to mediation, this paper aims to offer an insight into the initial stages of the legal decision-making process, involving an examination of the degree of control construction lawyers’ exercise over the decision-making process itself, as well as an analysis of the factors that determine the decision to use mediation. The empirical work thus far focuses on the different potential barriers to mediation that typically characterize the relationship clients’ and legal advisors, addressing to divergent monetary interests, non-monetary and psychological interests and barriers in the principal–agent relationship. Design/methodology/approach – Based on a quantitative survey of legal advisors in England and Wales (n = 212), the purpose of this paper is to explore mediation, specifically the factors that support its use, barriers that hinder use and the perceptions of the efficacy and level of effectiveness of the process. Findings – The findings indicate that more experienced construction lawyers reported using mediation to a far greater extent than less experienced lawyers, consistent with the proposition that more experienced lawyers develop a cooperative reputation as a function of their professional encounters. The results reveal that the absence of good mediators, influence of the courts, inability to create enforceable precedents, negative experiences and preferences for other forms of dispute resolution do not seem to be significant factors militating against the referral of cases to mediation. It would also seem that self-reported financial interests do not deter construction lawyers from referring cases to mediation. Nevertheless, there may be a need to develop more standardised approaches to setting mediation fee scales to minimise lawyers’ diminished fee income as a consequence of their increased involvement as advocates or counsel in mediated cases. Originality/value – The recent Jackson Cost Review has provided greater impetus for the use of mediation. A failure to respond to a request to engage in mediation may also be deemed unreasonable by the courts, as, for example, in the case of PGF II SA v. OMFS Company 1 Limited. Nevertheless, while the Civil Procedure Rules are being used by the courts in England and Wales increasingly to “encourage” parties to look to alternative methods to settle differences, little can be gleaned from the literature on the central role of construction lawyers in mediation, and more specifically the extent to which they refrain from referring cases to mediation in a manner inconsistent with their clients’ interests. Much of the construction-based research so far has focused on how mediation is bearing up in practice, its use, appealability and possible improvements.