Resolution Institute/Victoria University ‘Lawyers as Gatekeepers to Commercial Mediation in New Zealand’ Report

Abstract

This report contains research following on from the 2015 study examining the nature of private commercial mediation in New Zealand. The aim of this research project is to examine gatekeepers’ perspectives on commercial mediation. There is a lack of empirical information on the nature and use of commercial mediation in New Zealand. This project aims to gather empirical data from lawyers working within this field to gain a picture of the current market.

Overall conclusions include:

• Lawyers know about commercial mediation and support it, but largely on their own terms. They are not undermining it. Lawyers believe they are contributing positively to the mediation process.

• Clients have a more limited knowledge of mediation but usually follow their lawyer’s recommendations. Thus lawyers play a key role as gatekeepers to commercial mediation.

• The main reason lawyers recommend mediation is cost, i.e. it is cheaper than litigation.

• Lawyers prefer legal trained mediators with experience and a good reputation.

• Lawyers report high mediation settlement rates and high overall quality of mediation. Lawyers are generally happy with the standard of commercial mediation in New Zealand.

• It appears that while mediators believe it would be advantageous to expand commercial mediation in New Zealand, lawyers are generally satisfied with the level and quality of commercial mediation. The group that has not yet been surveyed is clients and potential clients of commercial mediation.

Keywords: Mediation, Commercial, Lawyers, New Zealand

JEL Classification: J52, K49