Abstract
This chapter sets out the historical development of modern mediation as well as the factors which fuelled its emergence from the ADR movement in 1970s USA. It reviews the key role of lawyers in developing mediation along with the early linking of mediation’s promise to the needs of civil court systems and subsequent growth of the process through court annexation. The chapter then maps out the development of lawyers’ interactions with mediation across a range of jurisdictions including through, for example, the introduction of lawyer-led mediation bodies, legal training and educational initiatives in mediation and growing lawyer activity in the mediation field. A snap shot of historical developments in a number of jurisdictions such as the USA, the Common Law world (including the UK, Australia, New Zealand, Canada and Hong Kong) and Continental Europe (including France, Germany, Italy and the Netherlands) is provided. Recent initiatives in mediation introduced by the European Union are also examined.
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Notes
- 1.
Alexander (2006), p. 1.
- 2.
See generally Roebuck (2007).
- 3.
Mulcahy (2002), p. 205.
- 4.
- 5.
An excellent review can be found in Auerbach (1983), Chap. 1.
- 6.
See Murray et al. (1996), p. 75.
- 7.
- 8.
- 9.
Cappelletti (1978).
- 10.
Roberts and Palmer (2005), p. 66.
- 11.
Sibley and Sarat (1989), fn 19.
- 12.
This terminology is borrowed from Sibley and Sarat (1989).
- 13.
Whether or not there was in fact a litigation explosion taking place at this time has been hotly contested—see, for example, Galanter (1985).
- 14.
Of no significant value in either monetary or legal terms.
- 15.
Sibley and Sarat (1989), p. 446.
- 16.
It would be misleading to suggest, however, that all those involved in the Pound Conference could be described as efficiency proponents. Analysis of the Pound Conference proceedings reveal that many of the participants were primarily interested in expanding access to justice rather than simply being concerned with ADR’s capacity for institutional efficiency—see Welsh and McAdoo (2005), pp. 401–405.
- 17.
This tainting of the mediation process may not necessarily be seen in a negative light. These matters are discussed in detail in later chapters of this book.
- 18.
Welsh (2001), pp. 15–16.
- 19.
Sibley and Sarat (1989).
- 20.
These are issues that we shall return to in Chap. 5.
- 21.
In terms of settlements produced and user satisfaction -see Welsh 2001, p. 20.
- 22.
Welsh (2001), p. 20 (internal citations omitted).
- 23.
- 24.
In terms of why many early schemes failed, in their review of the early ‘Community Boards’ experiment in San Francisco, Merry and Milner (1995) found that the reality of a ‘community’ upon which shared values could provide a basis for settlements, did not in fact exist in modern life and was no more than a romantic reflection of an indigenous community that no longer existed. The case-load was low and had little effect on community empowerment and settlements reached tended to reflect individual interests of disputants rather than any shared community norms.
- 25.
Welsh (2001), p. 2-.
- 26.
For a discussion of transformative mediation see Baruch- Bush and Folger (2005).
- 27.
Although conversely part of this ‘lightness’ may in fact entail the absence of lawyer representatives.
- 28.
I have focused on some principal jurisdictions representative of mediation developments across the common law and civil law tradition. Absence from discussion in this chapter will not preclude examination of any particular jurisdiction’s experiences in later chapters.
- 29.
Hensler (2003), pp. 185–186.
- 30.
U.S.C 28 §651(a) & (b) (1998).
- 31.
See generally Blomgren Bingham (2002).
- 32.
Stipanovich (2004), fns 132 and 133.
- 33.
Lande (2000), p. 147.
- 34.
Hensler (2003), p. 187.
- 35.
See the discussion in Chap. 4.
- 36.
- 37.
Although the extent of its embedding across core teaching in law schools has been questioned—see the discussion in Chap. 2 at Sect. 2.5.1.3.
- 38.
See generally Macfarlane (2008).
- 39.
Scotland has a ‘mixed’ legal system, being influenced by both common law and civil law traditions, although the incumbent formal court system is principally in the common law, adversarial mode.
- 40.
Including through developments under the auspices of CEDR (The Centre for Effective Dispute Resolution).
- 41.
Representing solicitors.
- 42.
Representing barristers.
- 43.
- 44.
Mistelis (2006), p. 145.
- 45.
For a discussion see generally Shipman (2006).
- 46.
Primarily through the medium of costs sanctions for unreasonable refusals to mediate—see Halsey v. Milton Keynes General NHS Trust, Steel v. Joy [2004] EWCA Civ 1651.
- 47.
- 48.
See the discussion in Chap. 5 at Sect. 5.2.3.
- 49.
Practice Direction 3A—Pre-Application Protocol for Mediation Information and Assessment.
- 50.
- 51.
South (2005).
- 52.
Some 41% were solicitors, 35% barristers and 7% judges - Gould et al. (2010), pp. 10–11.
- 53.
Bucklow (2007), p. 44.
- 54.
Prince and Belcher (2006), pp. 30–34.
- 55.
A joint CMC/Civil Justice Council project seeking to ascertain levels of mediation coverage in legal education is at the time of writing currently on-going.
- 56.
- 57.
For a review of early developments see generally Mays and Clark (1996), Chap. 1.
- 58.
Representing solicitors.
- 59.
Mays and Clark (1996). A Law Society of Scotland committee on ADR was set up at this time, although later disbanded.
- 60.
Formed in (1995). The author was a member of the original steering committee—there was much talk but sadly little action!.
- 61.
- 62.
The panels boast mediators drawn from many other professions, however.
- 63.
By virtue of the Legal Profession and Legal Complaints Act (2007), s. 8.
- 64.
- 65.
An ‘ADR’ elective exists at undergraduate level at the University of Aberdeen and a Post Graduate Qualification is available at the University of Strathclyde.
- 66.
Beyond pilot mediation schemes in “small claims” civil cases (see Ross and Bain (2010); Samuel (2002) and specific (and little used) court rules in certain circumstances - in consistorial matters, courts are empowered to refer certain matters to mediation -Rules of the Court of Session, 49.23; Sheriff Court Rules, 33.22 & 33A.22) and in respect of the commercial procedure in the sheriff court, matters may also be referred to mediation (Sheriff Court Rules, 40.12).
- 67.
Gill (2009), pp. 165–187 and Annex D. It has been argued that it does not go far enough, however—see Irvine (2010). The Scottish Government has since made positive noises as to mediation’s future potential and signalled an intention to better embed the process within the civil justice system—Scottish (2010).
- 68.
Under the Planning etc (Scotland) Act (2006).
- 69.
Under the Education (Additional Support for Learning) (Scotland) Act 2004.
- 70.
Tidwell (1999).
- 71.
Under the Community Justice Centres (Pilot Projects Act) 1980.
- 72.
Alexander (2001), p. 2.
- 73.
In, for example, Queensland and Victoria.
- 74.
Family Law (Shared Parental Responsibility Act) 2006.
- 75.
Act nº 17 of 2011.
- 76.
Tidwell (1999), para 11.
- 77.
Family Proceedings Act 1980, ss.8–19.
- 78.
See Freeman-Greene (2001).
- 79.
For a further discussion see http://www.courts.govt.nz/courts/family-court/what-family-court-does/mediation Accessed on 1 November 2011.
- 80.
See http://www.lawfuel.co.nz/releases/release.asp?NewsID=1406. Accessed on 1 November 2011.
- 81.
Under the Resource Management Act s.268. See also Oliver (2007).
- 82.
See, for example, Corby (1999).
- 83.
See the report at http://www.aminz.org.nz/Section?Action=View&Section_id=20&Story_id=1371 Accessed 1 November 2011.
- 84.
Through the Rules of Practice of the Superior Court Of Quebec in Civil Matters.
- 85.
Through the Act to Institute, under the Code of Civil Procedure, Pre-hearing Mediation in Family Law Cases and to Amend other Provisions of the Code (1997) c.42.
- 86.
See Prujiner (2006), p. 89.
- 87.
For a review see Macfarlane (2002).
- 88.
Prujiner (2006), p. 100.
- 89.
Prujiner (2006), p. 101.
- 90.
See Wall (2009), pp. 78–79.
- 91.
The scheme received a largely positive evaluation—see generally Hong Kong Polytechnic (2004).
- 92.
Chief Justice’s Working Party on Civil Justice Reform (2004).
- 93.
In 2010, for example, 100 out of 251 Hong Kong International Arbitration Centre general panel mediators were lawyers.
- 94.
Wall (2009), pp. 82–83.
- 95.
Cheung (2010), pp. 67–68.
- 96.
See Cheung (2010).
- 97.
Wall (2009), p. 84. At the time of writing a Mediation Bill seeking to further underpin the process on a statutory footing is set to be tabled at the Hong Kong Legislative Council—see http://www.news.gov.hk/en/categories/law_order/html/2011/11/20111116_161052.shtml Accessed 18 November 2011.
- 98.
Although see Macfarlane (2004), suggesting that acceptance of mediation, at least in the family context, may have been quicker in civil law countries than Anglo-Saxon nations in part because of the adversarial systems prevalent in the common law world.
- 99.
Alexander (2006), p. 20.
- 100.
See generally Alexander (2001).
- 101.
See De Roo and Jagtenberg (2002).
- 102.
De Roo and Jagtenberg (2002).
- 103.
The Vereniging van Familierecht Advocaten-Scheidingsbemiddelaars (Association of Family Law Lawyers-Divorce Mediators).
- 104.
NMI regulatory rules were published in 1995 and amended in 2000 governing such issues as confidentiality in the process, the voluntary nature of the process and independence of the mediator.
- 105.
Platform ADR (1998); Ministry of Justice Meer wegen naar het recht Beleidsbrief ADR 2002.
- 106.
Mediation naast rechtspraak (Court Encouraged Mediation) and Mediation Gefinancierde Rechtsbijstand (Mediation and Legal Aid). De Roo and Jagtenberg (2006).
- 107.
Macfarlane (2006), p. 182.
- 108.
De Roo and Jagtenberg (2006).
- 109.
See, for example, Neimeijer and Pel (2005), p. 359. The research revealed that 75% of the mediators in the five participating districts covered by the research were lawyers and they handled 81% of overall cases.
- 110.
This can be seen as fitting given its status as the “mother system” of the European civil law family—see De Roo and Jagtenberg 2004, Chap. 2.2.1.
- 111.
Macfarlane (2004).
- 112.
As distinct from well established, judicially sponsored conciliation procedures.
- 113.
Macfarlane (2006), p. 181.
- 114.
This is a feature shared across many European countries. For a discussion see Macfarlane (2004).
- 115.
February 8th 1995. While the provision was aimed principally at family mediation it is applicable across the civil dispute spectrum.
- 116.
Sassier (2001).
- 117.
See, for example, the experience of the Grenoble Court of Appeal in labour disputes.
- 118.
See, for example, the CMAP (Le Centre de Mediation et d’Arbitrage de Paris) established in 1995.
- 119.
Available at http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000024804821&dateTexte=&categorieLien=id. Accessed 1 November 2011.
- 120.
See Hoffman (2007), pp. 518–519.
- 121.
See, Alexander et al. (2006), p. 224.
- 122.
Hoffman (2007), p. 520.
- 123.
Hillig and Huhn (2010), p. 47.
- 124.
See Osten (2011).
- 125.
See the discussion in Alexander (2000).
- 126.
See discussion in Hoffman (2007), pp. 533–534.
- 127.
§ 2 Abs, 3 Nr 4.
- 128.
The measure does allow, however, for the provision of legal information. This distinction is discussed further in Chap. 3 at Sect. 3.4.3.3.
- 129.
Article 1(2c).
- 130.
Writing in 2003 Giuseppe De Palo, Paola Bernadini and Luigi Cominelli reported that the average duration of a civil trial amounted to some three and a half years - see De Palo et al. (2003), p. 51.
- 131.
Law No 374 (1991).
- 132.
Law No 580 (1993) and Law No 192 (1998).
- 133.
Law No 5 (2003).
- 134.
D.Lgs. 4-3-2010 n. 28, “Attuazione dell'articolo 60 della legge 18 giugno 2009, n. 69, in materia di mediazione finalizzata alla conciliazione delle controversie civili e commerciali”, Italian Official Journal, March 5, 2010, n. 53.
- 135.
See Sect. 1.2.4.
- 136.
De Palo and Hartley (2005), p. 475.
- 137.
At the time of writing a recent strike had been called by Italian lawyers in protest at recent legislation mandating mediation in civil litigation.
- 138.
For example, in respect of the 1996 Rome Bar Association conciliation service.
- 139.
See, for example, the requirements for inclusion on approved rosters under Article 4.4 of the decree no 222 of 2004.
- 140.
Recommendation 98/257/EC. A European Mediation Network was established in 2007 with a view to sharing best practice and consistent policies across Europe as well as promoting research—see http://www.mediationeurope.net/ Accessed 1 November 2011.
- 141.
Available at http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf Accessed 1 November 2011.
This has been adopted as a model by some regulatory bodies across Europe, e.g. the Civil Mediation Council in England and Wales.
- 142.
Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters.
- 143.
Where one party is domiciled on one country and the other in another EU state.
- 144.
Except Denmark.
- 145.
In respect of Gibraltar.
- 146.
See the report at http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/919&format= HTML&aged=0&language=EN&guiLanguage=en Accessed 1 November 2011.
- 147.
European Parliament resolution of 13 September on the implementation of the directive on mediation in Member States, its impact on mediation and its take-up by the courts (2011/2026(INI)).
- 148.
See http://www.adrcenter.com/international/cms/?page_id=259 Accessed 1 November 2011.
- 149.
Alleweldt et al. (2009).
- 150.
Alleweldt et al. (2009).
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Clark, B. (2012). The History of Lawyers and Mediation. In: Lawyers and Mediation. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-23474-3_1
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