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Lawyer resistance to mediation: a Scottish perspective

Clark, Bryan (2011) Lawyer resistance to mediation: a Scottish perspective. Malaysian Current Law Journal, 2011 (1).

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Abstract

The issue of lawyer resistance to mediation is one which has blighted the process since the early days of its re-birth in the 1960's USA. While mediation has grown significantly in many jurisdictions globally in recent decades and lawyers heavily populate the mediation field in many contexts both as mediators and as party representatives, simultaneously, lawyers stand accused of acting as a roadblock to mediation's growth. It has been argued that although clearly many lawyers have embraced mediation, many others remain on the fringes apathetic, others are openly sceptical or even anti-mediation in their posturing. Against this backdrop, this paper analyses the notion of lawyer resistance to mediation, the motives of those lawyers who can be seen to have resisted mediation and the impact that any erection of barriers by lawyers has had on, and may in the future hold for mediation practice. While the focus is primarily upon Scotland, the paper also draws on international evidence and indeed my findings may be of relevance to other jurisdictions in which similar issues and trends may be noted. The paper draws on empirical evidence, speculation from academic commentators and others as well as my own observations stemming from 16 years experience in the field, much of which I have spent in conversation with lawyers, mediators, disputants and scholars.