It is impossible to talk about the future, present or past of mediation without putting some sort of definition to that term. Clearly, mediation as dispute resolution has been around as long as disputes. When defined as a process that involves a designated third-party to assist in the resolution of disputes, mediation is almost as old. Village elders in remote parts of the world continue to be among the most effective mediators anywhere. For purposes of this article I will focus on mediation in commercial disputes where most parties are represented by legal counsel and where the mediator has established themselves as credible and qualified to function in that role.
Many of the other writings for the Mediation Futures Project have focused on the mediators themselves and the plethora of issues surrounding effective mediation. Some deal with the desired qualifications and certifications of mediators, while others opine on the techniques that will be the most successful in mediating disputes in the future. These are all important issues and there are shelves of books to be read about them, but the following observations are aimed at the global trends in the mediation of disputes as an adjunct or alternative to resolving them in court.
Most pundits of the ADR profession agree that commercial mediation in the United States started its formal development in the 1970s, and in particular following the 1976 Pound Conference in Minneapolis. Of course various forms of institutionalized conciliation, mediation and arbitration had been around much longer. The first organizations formed to provide mediation services for a fee appeared shortly thereafter. Today there are hundreds of companies and thousands of individuals engaging in these services, either in for-profit or non-profit companies or working in court-annexed programs.
Commercial mediation in Europe also has fairly deep roots, but again today’s most prominent ADR organizations have only been around for the past few decades, and most are in the United Kingdom. The European Parliament passed the 2008 mediation directive to encourage the use of modern facilitated mediation in its member countries, but with little effect to date.
So what can the history of commercial mediation in the United States tell us about the future of mediation globally? I would posit that most developed countries outside of the United States will have an experience similar to the U.S., a slow but steady adoption of facilitated mediation as a faster, easier and less expensive alternative to protracted court cases.
There are many examples where this trend is beginning to pick up momentum around the world. New commercial mediation centers have been launched in the past year alone in Brazil, Ecuador, Mexico, Egypt, Israel, Kuwait, India, Pakistan, South Korea and China just to name a few. But the number of cases being handled in each of these locations can be counted by the dozens, where in the U.S. there are multiple ADR providers who routinely handle hundreds or thousands of mediations per year.
The most common driver behind the growth of commercial mediation is the growth of litigation as economies develop, which inevitably leads to court backlogs that can extend cases out to 10 years or more. In extreme examples including India, it could take as long as 20 years to see a court case to its conclusion. With around 15 judges for every million citizens and more than 31 million open cases, the concept of “catching up” is not in their future without a massive overhaul of the Indian legal system and courts, and a heavy dose of ADR.
A fascinating example to watch is China, where courts were not widely used for commercial disputes until recent years when the economy was opened up to foreign entities, free trade zones were established and modern court systems were set up. What followed was a steep increase in the number of lawsuits, leading to the establishment of arbitration and mediation practices in law firms and the incorporation – with government support – of private mediation entities.
There are also examples of developed economies where the legal system is sufficiently well-oiled, access to courtrooms is relatively quick, and the need for third-party mediators is reduced. This is true in Germany, where most cases are disposed of in a few months and a form of conciliation is an accepted part of commercial legal practice, and in France where there is a relatively large judiciary to move court cases along.
It is only logical that mediation will become one of the primary tools to resolve disputes in a large number of developed and developing countries where the practice has yet to take hold and court cases are slow and expensive. But there are numerous headwinds slowing the adoption of mediation, including resistance by lawyers who are afraid it will reduce their income, court systems that are seen as corrupt or unfair and do not support mediation or uphold out-of-court agreements, and economics that do not provide sufficient financial incentives for trained mediators to thrive.
Even with these headwinds, commercial mediation will experience a slow but steady growth all over the globe in the next decades. The result in fairness, cost savings and user satisfaction will create its own momentum.
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