Getting the Faith: Why Business Lawyers and Executives Believe in Mediation
5 HARV. NEGOT. L. REV. 137 (2000)
96 Pages Posted: 5 Feb 2015
Why do some people become “believers” in mediation and others do not? This article presents the results of a study addressing that question. Respondents were outside counsel with commercial practices, inside counsel in business firms, and business executives. This study analyzes the respondents' belief in mediation, views about ADR, expectations about consequences of ADR for them personally, and their perceptions of the opinions of influential people in their lives about ADR. All three types of respondents generally “believed in” mediation and were satisfied with their mediation experiences. Most respondents believed that their organizational superiors, leaders in their profession, and top corporate executives had favorable views of mediation and ADR. Although respondents generally believed that mediation often saves time and money as compared with traditional litigation, their belief in mediation seemed to be most strongly related to perceptions that mediation helps preserve relationships and that business' top executives are often satisfied with the results in mediated cases.
The article suggests possible strategies for mediation proponents and cautions about potential problems with institutionalization of mediation. The responses in this study are consistent with patterns of institutionalization that are initially driven by calculation of perceived technical advantages of innovations and eventually shift to routinized processes of conformity in pursuit of increased legitimacy. Based on this analysis, mediation proponents should try to assure satisfaction by mediation participants (particularly mediation practices encouraging good relationships), promote court-ordered mediation, and advocate for rules requiring attorneys to consult with clients about ADR options. The article cautions about the potential for dysfunctional transformation of mediation practices as well as unexpected de-institutionalization.
Finally, the article considers whether belief in mediation is part of a larger “process pluralist” ideology consisting of an interrelated set of beliefs that embrace the availability and acceptability of a wide range of goals, norms, procedures, results, professional roles, skills, and styles in handling disputes involving legal issues. While this study does directly answer that question, it suggests that the existence, shape, and diffusion of such an ideology could shape dispute resolution practices for decades to come.
Keywords: mediation, business, commercial disputes, empirical research, institutionalization, routinization, process pluralism
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