Lawyer Resistance to Mediation

  • Bryan Clark


This chapter focuses on the controversial and complex issue of lawyer resistance to mediation. Despite the widespread growth of mediation globally, increasing mediation activity by lawyers and positive views on the process that many espouse, evidence suggests that some lawyers (perhaps the majority), as gatekeepers to mediation’s acceptance, remain resistant to the process. By reviewing evidence of lawyer activity with regard to mediation across a range of jurisdictions and by examining empirical evidence in the field, the chapter identifies and explores a number of reasons that lawyers may hold for resisting mediation. Such potential reasons include ignorance and misunderstanding relative to the process; cultural barriers arising from traditional legal practice and professional norms; professional self-interest and financial imperatives; and doubts as to the utility of mediation. A number of underpinning issues are analysed in seeking to explain why, and/or the extent that barriers have been erected to mediation’s growth. Such issues include: standard legal education and training, the traditional lawyer-client relationship and the nexus of control regarding dispute handling decisions; and the negative public perceptions of lawyers.


Dispute Resolution Legal Profession Legal Culture Legal Education Mediation Scheme 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.


  1. Abbott A (1988) The system of the professions: an essay on the division of expert labour. The University of Chicago Press, ChicagoGoogle Scholar
  2. Abel R (1988a) England and Wales: a comparison of the professional projects of barristers and solicitors. In: Abel R, Lewis PS (eds) Lawyers in society, volume one, the common law World. University of California Press, BerkleyGoogle Scholar
  3. Abel R (1988b) United States: the contradictions of professionalism. In: Abel R, Lewis PS (eds) Lawyers in society, volume one, the common law World. University of California Press, BerkleyGoogle Scholar
  4. Abel R (1999) American lawyers. Oxford University Press, New YorkGoogle Scholar
  5. ADR Center (2010) The cost of non ADR - surveying and showing the actual cost of intra-community commercial litigation. European Union, RomeGoogle Scholar
  6. Agapiou A, Clark B (2011b) A study of scottish construction contractors and sub-contractors’ views and experiences relative to mediation (Unpublished, on file with the author)Google Scholar
  7. Agapiou A, Clark B (2011b) Scottish construction lawyers and mediation: an investigation into attitudes and experience. Int J Law Built Environ 3(2):159–181Google Scholar
  8. Alexander N (2001) What’s law got to do with it? mapping modern mediation movements in civil and common law jurisdictions. Bond Law Rev 15(2):1–29Google Scholar
  9. Alexander N et al (2006) Mediation in Germany: the long and winding road. In: Alexander N (ed) Global trends in mediation, 2nd edn. Kluwer International, Alphen aan den RijnGoogle Scholar
  10. Alleweldt F et al (2009) Study on the use of alternative dispute resolution in the European Union. Final report. Civic Consulting of the Consumer Policy Evaluation Consortium (CPEC), Berlin 16 October 2009. Accessed 1 Nov 2011
  11. Ameer Ali NAN (2010) Mediation in the Malaysian construction industry. In: Brooker P, Wilkinson S (eds) Mediation in the construction industry: an international review. Spon Press, LondonGoogle Scholar
  12. Armes J (2010a) Paradiso perso. Eur Lawyer 94:21–30Google Scholar
  13. Armes J (2010b) All eyes on budgets. Eur Lawyer 94:11–12Google Scholar
  14. Armes J (2010c) Shifting sands. Eur Lawyer 94:16–20Google Scholar
  15. Ashenfelter O, Bloom D (1993) Lawyers as agents of the devil in a prisoner’s dilemma game. National bureau of economic research, working paper No 4447. MA, CambridgeGoogle Scholar
  16. Bohlander M (1998) Lawyers and the media: German experience. Leg Ethics 1(2):126–129Google Scholar
  17. Bok F (1983) A flawed system of law practice and training. Harvard Mag 38–44 (May/June)Google Scholar
  18. Boon A et al (2007) Regulation mediators? Leg Ethics 10(1):26–50Google Scholar
  19. Borbély A (2011) Agency in conflict resolution as a manager-lawyer issue: theory and implications for research. Negot Conflict Manag Res 4(2):129–144Google Scholar
  20. Boule L, Nesic M (2001) Mediation: principles. Process and Practice, ButterworthsGoogle Scholar
  21. Brooker P (2001) Commercial and construction ADR: lawyers’ attitudes and experience. Civ Justice Q 20:327–347Google Scholar
  22. Brooker P, Lavers R (2002) Commercial lawyers’ attitudes and experiences with mediation. Web J Curr Leg Issues 4:2Google Scholar
  23. Burrage M (1988) Revolution in the collective action of the French, American and english legal professions. Law Soc Inq 13:225–277Google Scholar
  24. Campbell C (1976) Lawyers and their public. In: MacCormick D.N (ed) Lawyers in their social setting. W. Green, EdinburghGoogle Scholar
  25. Cappelletti M et al (1967) The italian legal system: an introduction. Stanford University Press, StanfordGoogle Scholar
  26. ADR Centre et al (2010) Showing the actual costs of intra-community commercial litigation: survey data report. Accessed 1 Nov 2011
  27. Chase A (1986) Lawyers and popular culture: a review of mass media portrayals of American attorneys. Am Bar Found Res J 11(2):281–300Google Scholar
  28. Cioff JW (2009) Adversarialism versus legalism: juridification and litigation in corporate governance reform. Regul Govern 3:235–258Google Scholar
  29. Clark B, Dawson C (2007) Scottish commercial litigators and ADR: a study of attitudes and experience. Civ Justice Q 26:228–249Google Scholar
  30. Coope S, Morris S (2002) Personal injury. Negotiation and settlement. Scottish Executive, EdinburghGoogle Scholar
  31. Daicoff S (1997) Lawyer know thyself: a review of empirical research on attorney attributes bearing on professionalism. Am Univ Law Rev 46:1337–1427Google Scholar
  32. de los Angeles D (2011) Perceptions on court-annexed mediation in the philippines. Paper presented to 2nd Asian Mediation conference, Kuala Lumpar (On file with the author)Google Scholar
  33. De Palo G, Cominelli L (2006) Mediation in Italy: waiting for the big bang. In: Alexander N (ed) Global trends in mediation, 2nd edn. Kluwer International, Alphen aan den RijnGoogle Scholar
  34. De Palo G, Harley P (2005) Mediation in Italy: exploring the contradictions. Negot J 21:469–479Google Scholar
  35. de Roo A, Jagtenberg R (2003) The practice of mediation in eleven countries neighbouring the Netherlands. Dutch ministry of justice. Accessed 1 Nov 2011
  36. Dezalay Y (1991) Territorial battles and tribal disputes. Mod Law Rev 54:792–809Google Scholar
  37. Doyle M (2006) Evaluation of the small claims mediation service at manchester county court. Dept of Constitutional Affairs, LondonGoogle Scholar
  38. Dzienkowski JS (1996) Lawyering in a hybrid adversary system. William Mary law Rev 38:45–61Google Scholar
  39. European Union. Final report. Civic Consulting of the Consumer Policy Evaluation Consortium (CPEC), Berlin 16 October 2009. Accessed 1 Nov 2011
  40. Felstiner W, Sarat A (1980–1981) The emergence and transformation of disputes: naming, blaming, claiming. Law Soc Rev 15(3–4):631–654Google Scholar
  41. Felstiner W, Sarat A (1992) Enactments of power: negotiating reality and responsibility in lawyer-client interactions. Cornell Law Rev 77:1447–1498Google Scholar
  42. Fortham J (2001) Settlement under the CPR: quicker but no cheaper. IHL 89:27Google Scholar
  43. Freeman-Greene S (2001) Mediation: can we ignore it? Accessed 1 Nov 2011
  44. Gage Educational Publishing Company (1997). Gage Education, Toronto OntarioGoogle Scholar
  45. Galanter M (1984) Worlds of deals: using negotiation to teach about legal process. J Leg Educ 34:268–276Google Scholar
  46. Galanter M (1994) Predators and parasites: lawyer-bashing and civil justice. Ga Law Rev 28(3):633–681Google Scholar
  47. Galanter M (2005) Lowering the bar: lawyer jokes and legal culture. University of Wisconsin Press, Madison, WisconsinGoogle Scholar
  48. Geertz C (1973) The interpretation of cultures. Basic Books, New YorkGoogle Scholar
  49. Genn H (1998) The central London county court pilot mediation scheme evaluation report. Lord Chancellor’s Department, LondonGoogle Scholar
  50. Genn H (1999) Paths to justice: what people do and think about going to law. Hart Publishing, OxfordGoogle Scholar
  51. Genn H (2009) Judging civil justice: the 2008 Hamlyn lectures. Cambridge University Press, CambridgeGoogle Scholar
  52. Genn H, Paterson A (2001) Paths to justice Scotland: what people in Scotland do and think about going to law. Hart Publishing, OxfordGoogle Scholar
  53. Genn H et al (2007) Twisting arms: court referred and court linked mediation under judicial pressure. Ministry of Justice Research Series 1/07, Ministry of Justice, LondonGoogle Scholar
  54. Gibson RJ, Mnookin RH (1994) Disputing through agents: cooperation and conflict between lawyers in litigation. Columbia Law Rev 94:509–566Google Scholar
  55. Goodman-Delahunty J et al (2010) Insightful or wishful: lawyers’ ability to predict case outcomes psychology. Publ Pol Law 16(2):133–157Google Scholar
  56. Gould N et al (2010) Mediating construction disputes: an evaluation of existing practice. Centre for Construction Law, Kings College, LondonGoogle Scholar
  57. Gross LE (1999) The pubic hates lawyers: why should we care? Seton Hall Law Rev 29:1405Google Scholar
  58. Guardian Newspaper. Compulsory mediation angers lawyers working in Italy's unwieldy legal system. Accessed 1 Nov 2011
  59. Handler J (1978) Social movements and the legal system: a theory of law reform and social change. Academic, New YorkGoogle Scholar
  60. Hann G, Baar C (2001) Evaluation of the Ontario Mandatory Mediation Programme (Rule 24.1): Final Report – The First 23 Months. Ontario Ministry of the Attorney GeneralGoogle Scholar
  61. Hedeen T, Salem P (2006) What should family lawyers know? results of a survey of practitioners and students. Fam Court Rev 44:601–611Google Scholar
  62. Heinz J et al (1976) Diversity, representation and leadership in an urban bar: a first report on a survey of the Chicago bar. Am Bar Found Res J 2:717–785Google Scholar
  63. Hensler DR (2003) Our courts, ourselves: how the alternative dispute resolution movement is reshaping our legal system. Penn St L Rev 108:165–197Google Scholar
  64. Hoffman, A (2007) Mediation in Germany and the United States. European Journal of Law Reform 9:505–551Google Scholar
  65. Ilter D, Dikbas A (2010) Construction mediation in Turkey. In: Brooker P, Wilkinson S (eds) Mediation in the construction industry: an international review. Spon Press, LondonGoogle Scholar
  66. Irvine C (2010) The future of legal education: what’s ADR got to do with it? Scots Law Times 25:139–142Google Scholar
  67. Johnson T (1972) Professions and power. Macmillan, LondonGoogle Scholar
  68. Kagan RA (1991) Adversarial legalism and American government. J Pol Anal Manag 10:369–406Google Scholar
  69. Kagan RA, Rosen RE (1985) On the social significance of large law firm practice. Stanford Law Rev 37:399–443Google Scholar
  70. Kakalik J et al (1996) An evaluation of mediation and early neutral evaluation under the civil justice reform act (“The RAND Report”) RAND, ICJGoogle Scholar
  71. Kelemen RD, Sibbitt EC (2004) The globalization of American law. Int Organ 58(1):103–136Google Scholar
  72. Kelly M (1994) Lives of lawyers: journeys in the organization of practice. University of Michegan Press, Ann ArborGoogle Scholar
  73. Kotz H (2003) Civil justice systems in Europe and the United States. Duke J Comp Int Law 13:61–79Google Scholar
  74. Kritzer H (2001/2002) Lawyer fees and lawyer behavior in litigation: what does the empirical literature really say. Tex Law Rev 80:1943–1983Google Scholar
  75. Krizter H (1998) Contingent-fee lawyers and their clients: settlement expectations, settlement realities, and issues of control in the lawyer-client relationship. Law Soc Inq 23:795–821Google Scholar
  76. Kronman AT (1993) The lost lawyer: the falling ideals of the legal profession. Harvard University Press, CambridgeGoogle Scholar
  77. LaFontaine Y (1985) Are lawyers a vivid contradiction. In: Gibson D, Baldwin J (eds) Law in a cynical society? opinion and law in the 1980’s. Caswell Legal Publications, CalgaryGoogle Scholar
  78. Lande J (2000) Getting the faith: why business lawyers and executives believe in mediation. Harv Negot Law Rev 5:137–227Google Scholar
  79. Larson MS (1977) The rise of professionalism. University of California Press, BerkeleyGoogle Scholar
  80. Lasserre B (2003) Optimising the management of your international disputes. Thanks for mediation: the French experience. BETRIEBSBERATER 26: 22–24Google Scholar
  81. Lempereur A (1998) Negotiation and mediation in france: the challenge of skill-based learning and interdisciplinary research in legal education. Harv Negot Law Rev 3:151–174Google Scholar
  82. Loftus EF, Wagenaar WA (1987–1988) Lawyers' predictions of success. Jurimetrics J 28:437Google Scholar
  83. MacDonald R (2005) Legal culture. Discussion paper for civil justice reform group. Accessed 1 Nov 2011
  84. Macfarlane J (1995) Court-based mediation for civil cases: an evaluation of the Ontario court (general division) ADR center. University of Windsor, WindsorGoogle Scholar
  85. Macfarlane J (2001) Culture change? Commercial litigators and the Ontario mandatory mediation programme. Accessed 1 Nov 2011
  86. Macfarlane J (2002) Culture Change? A tale of two cities and mandatory court-connected mediation. J Dispute Resolut 2:241–366Google Scholar
  87. Macfarlane J (2008) The new lawyer: how settlement is transforming the practice of law. UBS Press, TorontoGoogle Scholar
  88. Malsch M (1990) Advocaten voorspellen de uitkomst van hun zaken Lawyers’ predictions of judicial decisions: a study on calibration of experts. Swets & Zeitlinger, LisseGoogle Scholar
  89. Mather L (2003) What do clients want? what do lawyers do? Emory Law J 52:1065–1086Google Scholar
  90. Mays R, Clark B (1996) Alternative dispute resolution in Scotland. Scottish Office Central Research Unit, EdinburghGoogle Scholar
  91. Mayson SW (1992) The future of the legal profession. Nottingham Law J 1:1–8Google Scholar
  92. McAdoo B, Hinshaw A (2002) The challenge of institutionalizing alternative dispute resolution: attorney perspectives on the effect of rule 17 on civil litigation in Missouri. Mo Law Rev 67:473Google Scholar
  93. McIlwaine L (2004) Tort reform and the compensation culture. JPI 4:239Google Scholar
  94. Meiser I (2006) Mediation and conciliation in Switzerland. In: Alexander N (ed) Global trends in mediation, 2nd edn. Kluwer International, Alphen aan den RijnGoogle Scholar
  95. Melville A, Laing K (2010) Closing the gate: family lawyers as gatekeepers to a holistic service. Int J Law Context 6(2):167–189Google Scholar
  96. Menkel-Meadow C (1996) The trouble with the adversary system in the post-mod multi cultural world. William Mary Law Rev 38:5–44Google Scholar
  97. Menkel-Meadow C (2000) Mothers and fathers of invention: the intellectual founders of ADR. Ohio State J Dispute Resolut 16:1–37Google Scholar
  98. Merry S (1990) Getting justice and getting even: legal consciousness among working-class Americans. University of Chicago Press, ChicagoGoogle Scholar
  99. Merry S, Sibley S (1984) (1984) What do plaintiff’s want? Re-examining the concept of a dispute. Justice Syst J 9:151–178Google Scholar
  100. Nedic M (2008) Mediation & lawyers: prejudice or interest? Paper presented at European Mediation conference, 10th April 2008, Belfast (On-file with the author)Google Scholar
  101. Neuberger L (2010) Education mediators. Paper presented to the fourth annual Civil Mediation Council conference, London (On file with the author)Google Scholar
  102. Niemeijer B, Pel P (2005–2006) Court-based mediation in the Netherlands: research, evaluations and future expectations. Penn State Law Rev 110:345–379Google Scholar
  103. Ooi CSS (2005) The role of lawyers in mediation: what the future holds. Accessed 1 Nov 2011
  104. Osiel MJ (1989) Lawyers as monopolists, aristocrats and entrepreneurs. Harv Law Rev 103:2009Google Scholar
  105. Parker C (1999) Just lawyers. Oxford University Press, OxfordGoogle Scholar
  106. Paterson A (1988) The legal profession in Scotland – an endangered species or a problem case for market theory? In: Abel R, Lewis PS (eds) Lawyers in society, volume one, the common law world. University of California Press, BerkleyGoogle Scholar
  107. Pears G (1983) Beyond dispute: alternative dispute resolution in Australia. Corporate Impacts Publications, EdgecliffGoogle Scholar
  108. Peters D (2007) When lawyers move their lips: attorney truthfulness in mediation and a modest proposal. J Dispute Resolut 1:119–142Google Scholar
  109. Peters D (2010) It takes two to tango, and two to mediate: legal, cultural and other factors influencing United States and latin American lawyers; resistance to mediating commercial disputes rich. J Global L Bus 9:381–429Google Scholar
  110. Peters D (2011) Understanding why lawyers resist mediation. Paper presented at 2nd AMA conference, Kuala Lumpur, Malaysia, 24–25 Feb 2011Google Scholar
  111. Peters RJ, Mastin DB (2007) To mediate or not to mediate: that is the question. Dispute Resolut J 62(2):14–21Google Scholar
  112. Pollack C (2007) The role of the mediation advocate: a user’s guide to mediation. Arbitration 73(1):20–23Google Scholar
  113. Post RC (1987) On the popular image of the lawyer: reflections in a dark glass. Calif Law Rev 75:379–389Google Scholar
  114. Prince S (2004) Court based mediation: a preliminary analysis of the small claims mediation scheme at exeter county court. University of Exeter, ExeterGoogle Scholar
  115. Prujiner A (2006) Recent developments in mediation in Canada. In: Alexander N (ed) Global trends in mediation, 2nd edn. Kluwer International, Alphen aan den RijnGoogle Scholar
  116. Relis T (2009) Perceptions in litigation and mediation: lawyers, defendants, plaintiffs, and gendered parties. Cambridge University Press, New YorkGoogle Scholar
  117. Riskin L (1982) Mediation and lawyers. Ohio State Law J 43:29–60Google Scholar
  118. Rogers N, McEwen C (1998) Employing the law to increase the use of mediation and to encourage direct and early negotiations. Ohio State J Dispute Resolut 13:831–41Google Scholar
  119. Rosenthal D (1974) Lawyer and client: who’s in charge? Russell Sage, New YorkGoogle Scholar
  120. Ross L (1999) Reactive devaluation in negotiation and conflict resolution. In: Arrow KJ et al (eds) Barriers to conflict resolution. W.W Norton, New YorkGoogle Scholar
  121. Ross M (2004) Mediating in the shadow of civil procedural law in Scotland: ‘nursing wrath’ towards ‘nurturing choice. Paper delivered to American Bar Association Dispute Resolution conference, New York, 2004 (On file with the author)Google Scholar
  122. Ross M, Bain D (2010) In court mediation pilots: report on evaluation of in court mediation schemes in Glasgow and Aberdeen Sheriff courts. Scottish government, courts and constitution analytical team.
  123. Russell C (2007) Mediation in England and Wales: a very English revolution. Accessed 1 Nov 2011
  124. Samuel E (2002) Supporting court users: the in-court advice and mediation projects at Edinburgh Sheriff court phase 2. Scottish Executive Central Research Unit, EdinburghGoogle Scholar
  125. Sander F (2000) The future of ADR. J Dispute Resolut 2000:3Google Scholar
  126. Sarat A, Felstiner W (1989) Lawyers and legal consciousness: law talk in the divorce lawyer's office. Yale Law J 98:1663–1668Google Scholar
  127. Saville-Smith K, Fraser R (2004) Alternative dispute resolution: general civil cases. New Zealand Ministry of Justice, WellingtonGoogle Scholar
  128. Scottish Consumer Council (2001) Consensus without going to court: encouraging mediation in non-family civil disputes in Scotland. Scottish Consumer Council, EdinburghGoogle Scholar
  129. Sela A (2009) Attorneys’ perspectives of mediation: an empirical analysis of attorneys’ mediation referral practices, barriers and potential agency problems, and their effect on mediation in Israel. Unpublished MSc thesis, Stanford Law School (On file with the author)Google Scholar
  130. Sharma A (1997) Professional as agent: Knowledge asymmetry in agency exchange. Acad Manag Rev 22(3):758–798Google Scholar
  131. Shestack JJ (2001) Introduction: a volume paving a path forward. In: Van Winkle JR (ed) Mediation: a path back for the lost lawyer. American Bar Association, ChicagoGoogle Scholar
  132. Sidoli del Ceno J (2011) An investigation into lawyer attitudes towards the use of mediation in commercial property disputes in England and Wales. Int J Law Built Environ 3(2):182–198Google Scholar
  133. Smith H (2007) The inside track: how the blue chips are using ADR. Accessed 1 Nov 2011
  134. Spangler E (1986) Lawyers for hire: salaried professionals at work. Yale University Press, New HavenGoogle Scholar
  135. Stipanowich T (2004) ADR and the ‘Vanishing Trial’: the growth and impact of ‘alternative dispute resolution’. J Empir Leg Stud 1(3):843–912Google Scholar
  136. Subrin S (2002) A traditionalist looks at mediation: it’s here to stay and much better than I thought. Nevada Law J 3:196–227Google Scholar
  137. Sugarman D (1995) Who colonized whom? Historical reflections on the intersection between law, lawyers and accountants in England. In: Dezalay Y, Sugarman D (eds) Professional competition and professional power. Routledge, LondonGoogle Scholar
  138. Susskind R (2010) The end of lawyers? Rethinking the nature of legal services. Oxford University Press, OxfordGoogle Scholar
  139. Tidwell A (1999) It’s the process that counts: professionalising mediation in New South Wales. Murdoch J Electron Law 6(2)Google Scholar
  140. Tromans R (2007) Challenging the conflict culture: mediations’ struggle for acceptance in Europe. Eur Lawyer 68:19–23Google Scholar
  141. Van Winkle J (2001) Mediation: a path back for the lost lawyer. American Bar Association, ChicagoGoogle Scholar
  142. Vindelov V (2006) Mediation in Danish law: in retrospect and perspective. In: Alexander N (ed) Global trends in mediation, 2nd edn. Kluwer International, Alphen aan den RijnGoogle Scholar
  143. Voegeli W (1992) (1992) Alternative dispute resolution in divorce disputes. Civ Justice Q 11:283–300Google Scholar
  144. Wall C (2009) The framework for mediation in Hong Kong. Arbitration 75(1):78–85Google Scholar
  145. Welsh NA (2001) Making Deals in Court-Connected Mediation: What’s Justice Got to Do With It? Wash Univ Law Q 79:786–865Google Scholar
  146. Welsh N (2004) Stepping back through the looking glass: real conversations with real disputants about institutionalized mediation and its values. Ohio State J Dispute Resolut 19:573–678Google Scholar
  147. Wissler R (2002) When does familiarity breed content? a study of the role of different forms of ADR education and experience in attorneys' ADR recommendations. Pepperdine Dispute Resolut Law J 2:199Google Scholar
  148. Wissler R (2004a) The effectiveness of court-connected dispute resolution in civil cases. Conflict Resolut Q 22:55–88Google Scholar
  149. Wissler R (2004b) Barriers to attorneys’ discussions and use of ADR”. Ohio State J Dispute Resolut 19:459–508Google Scholar
  150. Yu. H. (2009) Court Annexed Mediation. Civil Justice Quarterely 28(4):515–550Google Scholar
  151. Zariski A (1997) Lawyers and dispute resolution: what do they think and know (and think they know)? - finding out through survey research. Murdoch Univ Electron J Law 4(2)Google Scholar
  152. Zariski A (2000) Disputing culture: lawyers and ADR. Murdoch Univ Electron J Law 7(2)Google Scholar
  153. Zariski A (2011) The new old lawyer: how lawyers have adapted to mediation to preserve their power, income, and identity. Paper presented to 2nd Asian Mediation conference, Kuala Lumpur (On file with the author)Google Scholar

Copyright information

© Springer-Verlag Berlin Heidelberg 2012

Authors and Affiliations

  1. 1.University of Strathclyde Law SchoolGlasgowUK

Personalised recommendations