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Principal Lecturer, Law Department, School of Social Sciences and Law, Oxford Brookes University,
[email protected]

Professional Support Lawyer to the Construction Practice Group at the London Office of the US law firm White&Case and Visiting Professor of Law at Oxford Brookes University.
[email protected]

Copyright © Penny Brooker and Anthony Lavers 2002.
First published in the Web Journal of Current Legal Issues.

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This paper considers the application of mediation for commercial disputes following the introduction of the Civil Procedure Rules (CPR), which encouraged the use of alternative dispute resolution (ADR). A report is given on a survey of lawyers practising in the UK commercial litigation field and the respondents' experience of using ADR. An analysis is made of the settlement outcomes reported for mediation and respondents' attitudes to the appropriate use of ADR for commercial-related disputes. Mediation, practically to the exclusion of any other method of ADR, is being employed in some sectors of commercial work and survey respondents are repeat-users of the process. The majority of mediations reported concerned breach of contract and professional negligence cases. Data suggests that the specific categorisation of a commercial disputes as (say) professional negligence, personal injury or breach of contact is unlikely to affect mediation achieving full settlement. Commercial respondents were of the opinion that mediation is suitable for a wide variety of commercial case-types but breach of contract, professional negligence, general negligence and debt cases were specifically perceived to be appropriate. Commercial respondents reported that the major determinants for mediation reaching a successful outcome are the attitude and expectation of the parties in taking part in good faith and their willingness to compromise.

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Contents

Introduction
Survey methodology
Commercial respondents' familiarity with ADR
Commercial respondents' mediation experience
Categories of commercial mediation
Mediation 'settlement' and 'non-settlement' rates

Mediation 'success'
Mediation 'failure'

Commercial respondents' attitudes to mediation
Conclusion

Bibliography

Following the introduction of CPR on the 26^th April 1999, a duty was placed upon the courts by rule 1(4)(2)(e) to encourage and enable the parties to use ADR procedures in appropriate cases. This obligation is supported by judicial power under rule 26.4 to order a stay of proceedings while the parties try to settle the dispute. The authors have reported elsewhere the widespread view that a key provision - perhaps the key provision - in determining the effectiveness of judge-led ADR, is the role of the parties' efforts to resolve their disputes and any unreasonable refusal to use ADR in assessing costs. (Brooker and Lavers 2000, Brooker and Lavers 2001) It is a truism that the CPR were intended to transform the civil justice system in accordance with the ethos of the Woolf report (Woolf 1996); it is not cynical to suggest that costs or other sanctions would be needed to change the litigation culture of the legal profession. The requirement to consider with clients and other parties settlement using ADR would be ineffectual unless it was backed by some form of compulsion.

Prior to CPR, encouragement of parties to engage in ADR was unsupported by sanctions. There were procedures by which it could happen. The Commercial Court's Practice Statement of 10^th December 1993 was followed by other divisions of the High Court in 1995; the parties had to complete a pre-trial check-list issued before the summons for directions, which asked (inter alia) if ADR has been considered. The Commercial Court's Practice Statement of 7^th June 1996 required further steps to be taken and a more active involvement by the judge, including an invitation to the parties in appropriate cases to commence ADR and a power to adjourn proceedings. A party rejecting an offer to use ADR would then have to justify this refusal to the judge. A further initiative, developed and supported by Lord Woolf, was the development in 1996 of the Court of Appeal's voluntary mediation scheme (Genn 2002, p69-76). Parties involved in appeals are invited to agree to mediation and the Court arranges both mediation and mediators, who mediate with no fee.

Pre-CPR attempts to initiate ADR activity were notable for their modest levels of success. (Mulcahy 1999, Genn 1998, Gould and Cohen 1998, Brooker and Lavers 1997, Fenn and Gould 1994) The pilot scheme for court-annexed mediation set up by the Central London County Court (CLCC Scheme) achieved only a 5 per cent take up for non-family civil disputes. (Genn 1998, p 15)⁽¹⁾ Professor Genn's study identified the reason for this as being found in legal culture: "Telephone interviews with solicitors rejecting mediation, however, indicated a widespread ignorance about the nature of mediation, conservatism about the best approach to litigation, fear of showing weakness by accepting mediation, fear of losing income on the part of some solicitors and evidence of client resistance to mediation." (Genn 1998, p 35) The conclusion of the Genn research was that the future of mediation as a practical alternative to litigation in the County Courts at least would depend on 're-educating' legal professionals and the users of dispute resolution - i.e. their clients.

Professor Genn's review of ADR orders in the Commercial Court and the Court of Appeal's ADR scheme was published in 2002. (Genn 2002) 233 ADR orders had been made between July 1996 and June 2000, resulting in ADR procedures being taken up by the parties in just over half the cases. The data reveals that in the early part of the review the take-up rate for ADR was relatively low: 40 per cent from July to December 1996, 18 per cent from January to June 1996. However, the figures show that from July 1999 there was a 'trend suggesting increasing use of ADR' and from July 1999 to December 1999 it was calculated that 'about three-quarters' of the parties issued with ADR orders engaged in some form of ADR. (Genn 2002, pp 30-31). It is noted that this increase followed soon after the introduction of CPR in July 1999. The research concluded that the Commercial Court's practice in relation to ADR orders had influenced the way that lawyers advised their commercial clients on dispute resolution.

The take up rate of mediation in the Court of Appeal's ADR scheme was reported to be 'meagre'. (Genn 2002, p 77) Between November 1997 and October 1999 767 invitations to mediate were issued to appeal cases resulting in 15 mediations by the end of January 1999 - a take-up rate of 2 per cent. A significant improvement on the rate was achieved with the appointment of a full-time administrator. (Genn 2002, p 77) In the final analysis 38 cases were mediated in the review period, although in a further 99 cases one party agreed to mediate. The report concludes that the take-up of mediation at the appellate level may depend both on the 'expectations' of what ADR may accomplish or the 'potential for compromise' after one party has in effect already 'won' in an earlier court case. (Genn 2002, p 98)

As has been stated, the CPR draftsmen regarded it as necessary to give 'teeth' to the ADR imperative. Whereas Professor Genn thought that 're-education' of lawyers (and clients) could come through a demonstration of 'the superiority' of ADR in the study of the Central London County Court Scheme, a more potent factor has been found to be necessary to enforce the requisite change in thinking. Professor Genn's review of ADR orders in the Commercial Court recognises that 'substantial pressure' is put on parties to provide information about how they have proceeded following such an order and the reasons for failure and concludes that such 'pressure' may explain the success of court-based orders. (Genn 2002, Executive Summary p (i), p 37) The court has continued to apply 'pressure' on lawyers and their clients in a series of cases⁽²⁾ culminating in the Court of Appeal refusing to award the defendant's costs for unreasonably refusing to consider ADR in Dunnett v Railtrack PLC [2002] EWCA Civ 303 2 All ER 850. The purpose of this paper is to try to answer some fundamental questions about the use of ADR in commercial disputes in the Post-CPR era.

Top | Contents | Bibliography

The questionnaire survey was issued to a random sample obtained from lists of specialist construction and commercial litigation lawyers provided by the Law Society and the Bar Council.⁽³⁾ In total, 500 questionnaires were dispatched to 250 commercial and 250 construction solicitors. A further 50 questionnaires were sent to commercial and construction barristers. An overall response rate of 24 per cent was achieved for the survey. In total, 128 questionnaires were returned.⁽⁴⁾ The respondents were asked to indicate in percentage terms the proportion of their principal areas of work. 83 responses were from lawyers practising all or part of their time in the commercial litigation field. (65 per cent) Of these respondents, 45 worked 100 per cent of their time in the commercial sector and 38 worked in both construction and commercial fields. (Table 1.)

It is noted that the response rate is small at about a quarter of the total sample. The limitation of most studies of ADR in the UK at this present time is the relatively low take-up of the new ADR procedures. (Fenn and Gould 1994, Gould and Cohen 1998, Genn 1998, Genn 2002) It is likely that those who are supporters of a topic are more likely to respond to a postal survey, (Moser and Kalton 1993) which was borne out by the survey findings. When the questionnaires were inspected it revealed that respondents had substantial experience of engaging in mediation. Of the total random sample, over 16% had utilised some form of ADR, (Brooker and Lavers 2001) which provides compelling evidence that ADR is being taken up by some sectors of legal practice. (See below) The authors believe that the data provide a useful illustration of mediation activity from an experienced and informed section of legal commercial practice but note that it may not be representative of all practice in the area.

Work Category	Number	Percent
Commercial	45	35
Mixed	38	30
Construction	44	35
Total	127*	100

Lawyers were asked a number of questions relating to their level of knowledge concerning the new procedures and the ADR training they had undertaken. Over 60 per cent of commercial respondents had engaged in some form of ADR instruction and 22 per cent had trained as mediators.⁽⁵⁾ Over a third of commercial lawyers responding to the survey had taken CEDR (Centre for Effective Dispute Resolution) courses. Very few respondents specialising in the commercial sector had attended courses provided by the Law Society or the Bar Council.⁽⁶⁾

When asked to gauge their level of familiarity⁽⁷⁾ (using a scale from 1 = very familiar to 5 = very unfamiliar) with different ADR procedures, 84 per cent of commercial respondents declared themselves to be at least 'familiar' with mediation and this included 44 per cent who described themselves as 'very familiar'. However, these lawyers believed themselves to be less well-informed about other ADR methods. Only 38 per cent were 'familiar" or 'very familiar' with conciliation, 42 per cent with Early Neutral Evaluation and 30 per cent with the Executive Tribunal. The findings indicate that some sectors of commercial practice in the legal profession have begun to address the issue of ADR education at the "grass roots". (Genn 1998, p 36) However, the advances in this respect appear to be mainly restricted to mediation, since commercial respondents were less familiar with conciliation and Early Neutral Evaluation and were unfamiliar with the Executive Tribunal.

The data provide evidence that some lawyers operating in the commercial domain have begun to address the need for ADR education. The "widespread ignorance" of mediation (Genn 1998, p 149) identified in the CLCC Scheme, was not replicated in the ADR survey; nor were commercial respondents found to be reluctant to use mediation. When the questionnaires were inspected, 59 out of 83 (71 per cent) commercial respondents had used ADR. However, this experience was found to be almost entirely with mediation: only one solicitor practising 100 per cent in the commercial sphere had used any other method (conciliation) compared with 10 respondents who engage in both construction and commercial work who had used other forms of ADR. (Table 2.)

Table 2: Frequency commercial respondents had used other methods of ADR.

Work Category	Other ADR used	Other ADR not used
Commercial	1	27
Mixed work	10	20

Previous research identified apprehension on the part of some ADR policy advisors that the emphasis placed on mediation in the training period before the introduction to CPR would stifle the potential of other procedures (Brooker and Lavers 2000, p 357). The data provides support for these predictions. Mediation is almost exclusively the preferred choice of ADR for survey respondents operating in the commercial field. The lack of experience and knowledge of a range of ADR procedures, other than mediation, indicates that those interested in developing these methods have a considerable task to promote the benefits they may have over mediation or the traditional systems in commercial dispute resolution.

Respondents to the survey had taken part in 258 commercial mediations. (Table 3.) Over a third (34 per cent) of commercial respondents had used mediation once. However, 46 per cent, had used the process on between 2 and 5 occasions. 18 per cent had used mediation over 10 times. The numbers of 'repeat users' indicates that the commercial lawyers who returned the questionnaire are not merely paying 'lip-service' (Brooker 1999, p 27) to the process. On the contrary, commercial respondents were significantly satisfied with their mediation experience. 90 per cent were satisfied with the process generally.⁽⁸⁾ 84 per cent expressed satisfaction with the speed of mediation, 69 per cent with the cost and 73 per cent with the mediator.

Frequency	Settled	Did not settle	Partially settled	Settlement rate
258	199	45*	8	77.13%

Half (50 per cent) of the respondents working in the commercial field asserted that they recommend the process frequently. The well-documented perception that proposing mediation signals a lack of confidence in the case was not generally held by these lawyers.⁽⁹⁾ 63 per cent disagreed with the statement that proposing mediation is a sign of weakness. Nor did the commercial respondents believe their clients to be a negative influence on the decision to use mediation. Only 22 per cent agreed that their clients were often hostile to the process and as few as 13 per cent agreed that their clients did not like to use mediation. Nearly 80 per cent of the commercial respondents had made a proposal of mediation to the other side. In total, 205 commercial mediation offers had been made, which does not indicate a "fear" of the process. On the contrary, engaging in mediation was perceived to offer a number of potential benefits for commercial disputes, which are taken into account by the commercial respondents when considering its use.

Respondents who had used or proposed mediation were asked to assess which factors were relevant in this decision. A number of determinants were considered germane in the selection of mediation for commercial disputes. Of particular importance was the potential the process has either to lower costs or to expedite settlement. 92 per cent⁽¹⁰⁾ (59 per cent 'very relevant' + 33 per cent 'somewhat relevant') of commercial respondents judged that savings in legal costs were relevant in any decision to use mediation and 82 per cent⁽¹¹⁾ (36 per cent 'very relevant' + 46 per cent 'somewhat relevant') considered savings in management costs relevant. For 90 per cent⁽¹²⁾ (60 per cent 'very relevant' + 30 per cent 'somewhat relevant') the decision to use mediation was appropriate because of a possibility of achieving an earlier settlement through the process. 72 per cent⁽¹³⁾ (42 per cent 'very relevant + 30 per cent 'somewhat relevant') used mediation or offered to mediate, because of the speed of the process compared with other dispute resolution procedures and 67 per cent⁽¹⁴⁾ (27 per cent 'very relevant' + 40 per cent 'somewhat relevant') were of the opinion that mediation may have prevented delay in reaching a settlement. A desire to reach a compromise was also regarded as relevant by 85 per cent⁽¹⁵⁾ (55 per cent 'very relevant' + 30 per cent 'somewhat relevant') of the commercial respondents.

The potential benefits to be achieved from participating in mediation were also taken into consideration when deciding to utilise it for commercial disputes. 82 per cent⁽¹⁶⁾ (51 per cent 'very relevant + 31 per cent 'somewhat relevant') proposed mediation because a creative settlement may have been achieved through the process. 73 per cent⁽¹⁷⁾ (33 per cent 'very relevant' + 40 per cent 'somewhat relevant') considered the possibility of narrowing the issues during mediation to be a relevant factor. Mediation was also proposed or used by 62 per cent⁽¹⁸⁾ (31 per cent 'very relevant' + 31 per cent 'somewhat relevant') of commercial respondents because the procedure may have the effect of enabling the relationship to continue. For 61 per cent⁽¹⁹⁾ (16 per cent 'very relevant' + 45 per cent 'somewhat relevant'), it was relevant that mediation might assist the understanding of the case.

Other factors favouring the use of mediation were found to be of less importance: fewer than half felt that the privacy of mediation was pertinent and only 42 per cent⁽²⁰⁾ (14 per cent 'very relevant' + 28 per cent 'somewhat relevant') considered it relevant that using the process may have presented an opportunity to gain more information about the dispute.

The data provide evidence that, rather than fearing the effect of mediation on their customary practice and revenue, as was the experience in the CLCC Scheme, commercial respondents in the ADR survey are incorporating mediation into the dispute resolution process. Not only do the findings confirm that a sizeable number of commercial mediations have taken place but the number of 'repeat-users' and the number prepared to recommend or propose mediation indicate that respondents to the survey perceive that positive benefits can be achieved by using the process for commercial cases.

The demand for mediation in the CLCC Scheme was greatest for cases involving breach of contract such as disputes over the delivery or supply of goods. Conversely, cases involving personal injury (whether from road traffic cases, employers' liability, occupiers' liability or medical negligence) were "overwhelmingly" rejected for mediation (Genn 1998, p 17) and the process was only accepted for professional negligence in 5 per cent of cases. In order to discover if the CLCC findings had a more general application to commercial cases, respondents in the ADR survey were asked to complete a chart reporting the number of occasions that mediation had been used for different categories of dispute. The ADR survey adopted the classification of 'case-type' used by the CLCC Scheme (Genn 1998, p 17) but additional categories were added following advice from mediators and solicitors during the design of the questionnaire instrument. As noted earlier, the survey was directed at lawyers on the Law Society's and Bar Counsel's commercial litigation list and some mediation activity such as medical negligence is not likely to be the general part of the respondent's practice. Respondents who had trained as mediators may have mediated medical negligence cases or represented Health Authorities or insurers.⁽²¹⁾ For completeness the survey reports the mediations experienced by the respondents but notes that some case-types reported are not normally classified as commercial.

In line with the CLCC Scheme, the majority of commercial mediations in the ADR survey (37 per cent) involved breach of contract cases: 116 mediations in total. Personal injury cases were at issue in fewer than 1 per cent of mediations. In contrast to the pilot scheme, 27 per cent of reported mediations in the ADR survey concerned professional negligence. It should be noted that the CLCC Scheme involved cases in the County Court with a value of over £3,000 and that 41 per cent of mediations involved cases between £5,000-£10,000. (Genn 1998, p 23) The ADR survey was directed at specialist commercial litigation lawyers and the majority of mediations (46 per cent) were between £250,000 and £1,000,000.⁽²²⁾ When the percentage was calculated for respondents working only in the commercial field, 35 per cent of mediations were in this financial bracket. The findings for the ADR survey suggest that mediation outside the County Court will continue to involve contractual issues, an unsurprising result for commercial cases, but that mediation has an important part to play in professional negligence cases. Mediation appears to have a wider application for commercial case-type than previously reported.

One method of testing the effectiveness of mediation in the ADR survey was by determining the rate the process achieved full settlement of the dispute. This was calculated by asking respondents to state whether the mediations they had taken part in had settled, not settled or partially settled. Commercial disputes in the ADR survey were found to reach settlement on 77 per cent of occasions. This was higher that the 68 per cent rate for construction mediation in the survey. (Brooker and Lavers 2001, p 339) It is also a higher success rate than the 62 per cent achieved for commercial disputes in the CLCC Scheme and 55 - 56 per cent reported for ADR procedures following ADR orders under the Commercial Court scheme. (Genn 2002, p33) The overall settlement rate in the Court of Appeal's mediation scheme was 45 per cent. (Genn 2002, p 88) However, as recognised in the report different factors may be at play in cases that have reached the court of appeal because one party has already had a successful outcome in a court of law.

The CLCC Scheme 'tentatively' concluded that 'case-type' did not preclude a successful settlement outcome for mediation (Genn 1998, p 45) and the data from the ADR survey would lend support to this conclusion. Tests did not establish that any category of commercial dispute reached settlement more frequently. (LR chi square = 9.559: df = 6; p = 1.61). Whether the mediation involved personal injury, professional negligence, general negligence, breach of contract, contract issues generally or 'other case-types'⁽²³⁾ was found not to affect the settlement rate. (Table 4.) Case-type is unlikely to indicate the appropriateness or unsuitability of mediation for commercial disputes.

Despite a high settlement rate for commercial mediation in the survey, the findings confirm that the process does not always reach a conclusive settlement. 61 per cent of commercial respondents who reported using the process had experienced a mediation that failed to reach a settlement. Mediations are referred to as 'failed' only in the sense that they did not reach a settlement.⁽²⁴⁾ 36 commercial respondents had been involved in a mediation that did not reach a settlement. Although the total number of respondents involved is relatively small their experience is reported as they support data from other research and may assist the understanding of the application of ADR. These lawyers were asked to assess the relevance, using a Likert scale of 1 = very relevant to 5 = very irrelevant, of a number of possible reasons for the mediation's failure. Commercial respondents identified the existence of specific attitudes of the participating parties to be the major obstacle to a successful settlement outcome in mediation. Thirty one (86 per cent) commercial respondents who had experienced a 'failed' mediation were of the opinion that settlement was not achieved because one or more party had unrealistic expectations. Thirty two commercial respondents (88 per cent) believed it was relevant that one or more disputant was entrenched or polarised in his/her position. Thirty one (86 per cent) held that the presence of an uncompromising attitude by an involved party was a relevant factor and 27 (75 per cent) thought that mediation 'failure' was the result of the parties being too far apart in their arguments. Over half (20 commercial respondents) felt that mediation failure had been caused by the presence of 'bad feeling' between the parties.

Commercial respondents identified a number of other factors relevant to the failure of a mediation to reach a successful outcome. In the experience of nearly a third of commercial respondents' (12) involved in non-settlement, the process failed because of a deficiency or lack of skills on the part of the mediator. 16 (45 per cent) perceived that commercial mediations failed because one or more parties had used the process tactically and half (18) experienced failure due to a conflict of evidence.

The attitude of the parties has frequently been identified as an essential factor in the success of mediation (Cooper 1992, p 219, Genn 1998, p 108) and other studies have shown that settlement is less likely to be achieved when the parties are unwilling to participate in 'good faith' or consider compromise (Stipanowich 1996, p 98). Respondents reported that they take the other party's attitude into consideration when advising their clients on whether to accept or reject the opposing side's proposals to mediate. Thirty five (42 per cent) commercial respondents reported refusing a mediation offer. This data is reported as it illustrates the possible factors restricting the take-up of mediation. Of the commercial respondents who had refused an offer to mediate, 46 per cent (16) had done so because they did not believe the other side was serious about the proposal and 41 per cent (14) advised refusal because they believed the other party would not take part in good faith. Other factors taken into consideration when rejecting mediation were the appropriateness of the case (19 commercial respondents; 54 per cent) and a belief that negotiation was capable of settling the dispute (11 respondents; 32 per cent). Over a third of commercial respondents who had refused mediation (13) did so because they held that discovery was essential before reaching settlement.

The ADR survey lends credence to the vital importance of the parties' attitude in mediation. Without trust and willingness to compromise, the mediation is less likely to reach a settlement. Lawyers who responded to the questionnaire characterised their normal practice in the dispute resolution process as engagement in negotiation. It is also likely that, if the parties are unwilling to 'negotiate' in good faith and are polarised in their views, these are ingredients liable to protract legal negotiation and lead to litigation. It may be that a few experienced mediators are able to work successfully with negative and unrealistic party attitudes but when drawing up criteria for determining the appropriateness and suitability of commercial cases for mediation, the parties' disposition and approach should be a major factor taken into consideration.

Statements relating to the appropriateness of mediation for commercial disputes were attitude tested in the ADR survey in order to evaluate the likely growth of mediation in the commercial sector. Solicitors in the CLCC Scheme were of the opinion that mediation was most appropriate for cases where "the claim value was low and costs would be out of proportion, straightforward debt cases, cases where one party was not legally represented and cases where the disputes relate to issue of fact rather than law" (Genn 1998, p 128) and inappropriate where there were "complex factual and legal issues, personal injury cases and large commercial claims."

Respondents operating in the commercial sector agreed that some categories of commercial dispute were appropriate for mediation. It is noted that for some case-types a high percentage of respondents indicated that they had no opinion on the issue and this is reported where it existed. The most likely cause of this is that responding lawyers are not specifically involved in these areas. The type of dispute perceived to be most suitable for commercial mediation was breach of contract. 90 per cent of commercial respondents (73) agreed 'breach of contract' issues were appropriate for mediation and 85 per cent (68) agreed that disputes concerning goods and services were suitable. Commercial respondents also expressed high levels of agreement on the application of mediation to cases concerning breach of covenant (65 respondents; 84 per cent), professional negligence (54 commercial respondents; 66 per cent) and general negligence (55 commercial respondents; 68 per cent) and debt (50 commercial respondents; 61 per cent).

Commercial respondents were less emphatic about the suitability of mediation for other case types. 50 per cent (40) believed that the mediation process was appropriate for personal injury cases but a high number, 21, held no opinion (26 per cent). Few personal injury mediation cases were reported in the survey, which is similar to the experience of the CLCC Scheme. However, this is to be expected given the sample frame selected for the survey. Mediation was not believed to be suitable for disputes involving defamation (21 per cent)⁽²⁵⁾ nor specific performance (39 per cent). It is possible that ADR and mediation activity are more prevalent for personal injury and 'case-types' such as medical injury and research is needed on the experience of solicitors and barrister specialising in other areas of dispute. The survey does show that, in some sectors of commercial practice, the image of lawyers, fearful of a loss of revenue and unenlightened about the advantages of mediation can no longer be sustained. On the contrary, the respondents operating in the commercial field had a high level of repeat experience with the process and the negative perceptions previously attributed to the legal profession were not found to be in existence. The evidence points to a change in attitude and practice amongst commercial lawyers.

According to a recent article by Paul Newman "some lawyers undergo a Damascene conversion", to the merits of ADR (Newman 2002, p 28). This study encountered no evidence of such sudden dramatic transformation. However, the picture is markedly different from the "widespread ignorance" reported by Hazel Genn less than four years previously. Commercial lawyers who responded to the survey can be characterised as knowing about ADR, or more accurately about mediation, and being prepared to recommend its use. Mediation, it should be observed, is overwhelmingly the ADR type known to the respondents; it would hardly be an overstatement to say that some regard ADR and mediation as synonymous. This is not self-evident. In the US, for example, admittedly looking exclusively at construction disputes, Stipanowich and Henderson found the American Bar Association respondents to have significant awareness of mini-trial as long ago as the early 1990's, although mediation was the main technique (Stipanowich and Henderson 1992, p 314). A sector of UK commercial lawyers is much more aware of ADR than might have been expected from earlier evidence on mediation. Nor is the awareness purely theoretical. While over 60 per cent of the respondents had engaged in some form of training, no doubt gratifying to ADR Group and CEDR, the preferred providers, more significant is the statistic that nearly one half had used mediation between 2-5 times, and that 90 per cent were generally satisfied with their experience. This is evidence of relatively substantial use of mediation and it suggests the likelihood of further 'repeated use'. The positive reasons adduced for recommending mediation and the rejection of a number of the negative views previously encountered, such as client hostility, point to a disappearing or at least diminished distrust of the process in some sections of commercial practice.

While, consistently with the Genn research (1998), it was found that mediation was used more frequently for certain types of dispute, notably those relating to breach of contract there was no evidence in the settlement rates to show that particular types of dispute were more suitable for resolution by that method. Newman reports that the major ADR providers claim "success rates up to 83 per cent" (Newman 2002). The findings of this study actually tend to support that claim in most categories of dispute. The respondents, it appears, are pragmatic too in their analysis of the reasons for 'failure' of a mediation to achieve settlement. Cynical use of the process for tactical reasons or the uncompromising or unrealistic attitudes of the parties were among the most frequent reasons for 'failure'. Care must be taken, of course, in regarding 'non-settlement' and 'failure' as co-extensive, since there are seen to be benefits to be obtained from the mediation process, such as clarifying the factual matrix and laying the ground-work for later resolution. However, the attitudes of the commercial respondents themselves did show some indication of disputes which are more appropriate and less appropriate for the use of mediation. Breach of contract and professional negligence, two of the most frequently mediated types of disputes, are seen by the respondents as among the most suitable for mediation.

This research should not be understood to minimise the difficulties still faced by those seeking to advance the cause and the utilisation of ADR. Nor is it intended to be used to deride the genuine concerns which some practitioners still feel in advising the use of ADR to attempt the resolution of a commercial dispute. But it can help to dispel the image (‘caricature’ might be a better word) of an ignorant and prejudiced profession setting its face against the use of ADR and obstructing legislative and judicial attempts to encourage it. The cause may have been the CPR rather than widespread Damascene conversions, but attitudes and practice are changing and the indications are that the trend will continue rather than be reversed.

Brooker, P (1999) 'Juridification of ADR.' Anglo-American Law Review, 28(1), 1.

Brooker, P and Lavers, A '(1997) Perceptions of ADR as constraints upon its use in the UK construction industry' Construction Management and Economics Vol. 15, No. 6, 519

Brooker, P and Lavers, A (2000) 'Issues in the Development of ADR for Commercial and Construction Disputes.' Civil Justice Quarterly, Volume 19, 353.

Brooker, P and Lavers, A (2001) 'Commercial and Construction ADR: Lawyers' Attitudes and Experience.' Civil Justice Quarterly, Volume 20, 327.

Cooper, C (1992) 'Mediation: The experience of the United States. Construction Conflict Management and Resolution.' Fenn, P and Gameson, R (Eds.), (E&FN Spon, London) 291

Genn, H (1998) 'Central London County Court Pilot Mediation Scheme. Evaluation Report' (Lord Chancellor's Department. Research Series, No. 5/98)

Genn, H (2002) 'Court-based ADR initiatives for non-family civil disputes: The Commercial Court and the Court of Appeal' (Lord Chancellor's Department. Research Series, No. 1/02)

Gould, N and Cohen, M (1998) 'Appropriate Dispute Resolution in the UK Construction Industry' Civil Justice Quarterly, Vol. 17, 103

Fenn, P and Gould, N (1994) 'Dispute Resolution in the UK Construction Industry', Conference on Dispute Avoidance in the Construction Industry, University of Kentucky, Lexington, KY.

Moser, K and Kalton, G 'Survey of Methods in Social Investigation' (1993) Gower: Aldershot.

Mulcahy et al (1999) 'Mediation Medical Negligence Claims: An Option for the Future?' TSO, London

Stipanowich, T (1992) 'Mediation and mini-trial of construction disputes' Construction Conflict and Resolution. Ed. Fenn P. and Gameson R. (E&FN Spon, London), 314

Stipanowich, T (1996) 'Beyond Arbitration: Innovation and Evolution in the United States Construction Industry' Vol. 31, 65

The ADR Group Debate 2001. How committed is the legal system to mediation? London, November 2001

Newman, P (2002) 'Where next for ADR?' Construction Law Vol. 13 Issue 1, Jan/Feb, 28

Woolf (The Right Honourable The Lord Woolf, Master of the Rolls) (1996) 'Access to Justice: The Final Report to the Lord Chancellor on the Civil Justice System in England and Wales' (HMSO), London.

⁽¹⁾160 cases were mediated out of 4,500 offers during the period of the Central London County Court Mediation Scheme. Professor Genn reports that the take-up rate of mediation in the Central London County Court Mediation Scheme since the 1998 review has declined (Genn 2002, p 103). It is suggested that one reason for this could be a change in procedure from a 'personalised letter to open invitations' (Genn 2002, p 107-108).

⁽²⁾ Dyson and Field (Executors of Lawrence Twohey deceased) v Leeds City Council. (1999) Lawtel, 22 November (unreported elsewhere). The Court of Appeal reiterated its powers of awarding indemnity costs or ordering higher rates of interest on damages when parties have acted unreasonably in failing to use ADR. In Paul Thomas Construction Ltd v. (1) Damian Hyland (2) Jackie Power (2001), CILL 1748. The claimant's unreasonable behaviour in threatening litigation proceedings on the facts of the case were a breach of pre-action protocol and the proper sanction was the award of indemnity based costs. In Frank Cowl & ORS v Plymouth City Council [2001] EWCA Civ 1935 the Court of Appeal held that unless good reasons existed the court should not permit judicial review in cases where substantial parts of the dispute could be settled outside litigation.

⁽³⁾ The authors would like to thank the Bar Council and Law Society for their invaluable assistance in this project.

⁽⁴⁾ 14 replies were received, by letter or email, indicating that the respondent either did not work in the commercial or construction sectors, or that the addressee was unattainable. The total sample frame was 529 and the overall response rate reflects this number.

⁽⁵⁾ In total, 18 lawyers working in the commercial sector had trained as mediators. Of these, 14 had completed the full training. 8 commercial lawyers had mediation training at ADR Group, 6 at CEDR and three at 'other' centres.

⁽⁶⁾ Two commercial respondents had attended a Law Society Course on ADR and two had taken courses provided by the Bar Council.

⁽⁷⁾ The wording on the questionnaire was; 'Please tick how familiar (informed) you are (1 = 'very familiar' to 5 = 'very unfamiliar') with the following ADR processes and terms. If you have no knowledge of any procedure, tick box 6.

⁽⁸⁾ Genn reports customer satisfaction of court-based initiatives in mediation and the Central London County Court Scheme (Genn 2002, pp 66, 99, 112-113).

⁽⁹⁾ One survey in the construction industry suggests that contractors did not fear that using ADR is a sign of weakness. However, there was a reluctance to use the process because of an apprehension that its non-binding nature could be used to create a delay in settlement and thus add to the costs of dispute resolution (Brooker, P and Lavers, A 1997).

⁽¹⁰⁾ 41 commercial respondents indicated that a savings in legal costs was 'very relevant' and 23 'somewhat relevant' in the decision to use or propose mediation.

⁽¹¹⁾ 25 commercial respondents indicated that savings in management costs were 'very relevant' and 32 'somewhat relevant' in the decision to use or propose mediation.

⁽¹²⁾ 43 commercial respondent indicated that achieving an earlier settlement was 'very relevant' and 21 'somewhat relevant' in the decision to use or propose mediation.

⁽¹³⁾ 29 commercial respondents indicated that the speed of mediation compared to other dispute resolution procedures was 'very relevant' and 21 'somewhat relevant' in the decision to use or propose mediation.

⁽¹⁴⁾ 19 commercial respondents indicated that the possibility of mediation preventing delay was 'very relevant and 28 'somewhat relevant' in the decision to use or propose mediation.

⁽¹⁵⁾ 38 commercial respondents indicated that the desire to reach a compromise was 'very relevant' and 21 'somewhat relevant' in the decision to use or propose mediation.

⁽¹⁶⁾ 36 commercial respondents indicated that the possibility of reaching a creative settlement was 'very relevant' and 22 'somewhat relevant' in the decision to use or propose mediation.

⁽¹⁷⁾ 23 commercial respondents indicated that the possibility of narrowing issues was 'very relevant' and 28 'somewhat relevant' in the decision to use or propose mediation.

⁽¹⁸⁾ 20 commercial respondents indicated that possibility of enabling a continuing relationship was 'very relevant' and 20 'somewhat relevant' in the decision to use or propose mediation.

⁽¹⁹⁾ 11 commercial respondents indicated the possibility of assisting the understanding of the other side's case was 'very relevant' and 32 'somewhat relevant' in the decision to use or propose mediation.

⁽²⁰⁾ 10 commercial respondents indicated that the possibility of gaining more information was 'very relevant' and 20 'somewhat relevant' in the decision to use or propose mediation.

⁽²¹⁾ Some commercial respondents were found to have either mediated or acted as co-mediators in medical negligence and neighbourhood disputes.

⁽²²⁾ When the frequencies of financial sizes for mediations were investigated for both commercial and construction lawyers 41 per cent of mediations were found to be in the £250,000-£1,000,000 bracket. (Brooker, P and Lavers, A 2001, p 345)

⁽²³⁾ The smaller categories (actions for specific performance, debt, goods and services, and medical injury) were collapsed into 'other case-types'.

⁽²⁴⁾ Other benefits can be gained from engaging in a mediation process such as a better understanding of the dispute or enabling the dispute to settle at a later stage.

⁽²⁵⁾ 25 commercial respondents did not hold an opinion on whether mediation was suitable for defamation cases. It is noted defamation and libel are specialised areas of law.