Getting the Faith: Why Business Lawyers and Executives Believe in Mediation

Do you believe in mediation? That may seem like an odd question. Normally one thinks of ‘believing in‘ (or having faith in) things like magic, God, or the market. These are typically things that are beyond verifiable human knowledge (such as magic and God) and/or deeply held values (such as whether the market is a better mechanism than government for managing the flow of goods and services). At first blush, one might not think that mediation would fall into either category. There have been numerous empirical studies about many different aspects of mediation, so one can confidently say, for example, that mediation participants generally perceive that the process and outcomes of mediation are fair and generally are satisfied with the process. I suspect that for most people, belief in mediation refers to the value of mediation as a dispute resolution technique (particularly in comparison with the value of litigation). Belief in mediation, then, may be like belief in the market. There is an immense amount of research on the functioning of the market, yet experts sharply disagree in their interpretations and predictions about how it functions, not to mention the relative values of market and government systems of economic management. There is such complexity and scope of extraneous variables affecting both mediation and economic systems that presumably no amount of empirical research would ever settle these debates. For many people, such beliefs may become matters of faith, i.e., deeply-held convictions that are largely impervious to careful analysis of evidence. I suggest that they are ideologies based on faith to a considerable extent. Indeed, understanding belief in mediation by many people is likely to require one to transcend assumptions that it is simply based on cool analysis of advantages and disadvantages. This study is intended to examine a wide range of factors that give rise to (or at least relate to) belief in mediation. In the 1980s and 1990s, ADR in general, and mediation in particular, became things that people do (or don\u27t) believe in on a technical and, especially, ideological level. Proponents believe that ‘it‘ ‘works‘ and it is good. Indeed, there are ‘true believers‘ who profess their faith in it and proselytize at professional gatherings. Opponents sometimes challenge claims about how well it works or argue that, even if it does ‘work‘ in some respects, it produces adverse side-effects that outweigh any benefits. Thus, it has become perfectly normal to state (or ask) whether one is a believer in ADR or mediation. This is captured quite well in the following excerpt from an interview with a lawyer for this study: My experience has been, for example, with large corporations, in-house legal departments have sort of gotten the word that ‘ADR is something we need to think about. It\u27s important.‘ So one of the things people are always asking your firm is, ‘What experience do you have in ADR? Are you believers in ADR? Arguments about mediation (and ADR generally) have been carried out in the scholarly and professional literature by scholars and professional opinion leaders. Similar, but perhaps briefer, conversations play out in circles of regular dispute handlers such as lawyers and business executives. Some people are quite enthusiastic and ‘talk it up,‘ encouraging others to use it more in their own cases. Other people have reservations about using ADR procedures and may criticize the procedures or discourage using them in particular cases. Why do some people become believers in mediation and others do not? This article presents the results of a study addressing that question, particularly for those who handle disputes rather than those who mostly theorize about them. The article focuses on belief in mediation because it does seem to be the rising star of the current ADR era. To provide a context for the results of this study, Part II of this article describes the growth of mediation during the current ADR era and some possible reasons for the growth, based on sociological theories of law, organizations, and the professions. Part III describes the methodology of the study, and Part IV describes the organizational settings where respondents work, their professional and disputing experience, and their sources of information about ADR. Respondents in this study are outside counsel with commercial practices, inside counsel in business firms, and business executives. Parts V and VI provide detailed analyses of the data collected in this study. Part V analyzes the respondents\u27 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. To provide a fuller understanding of these views, Part VI examines factors associated with the respondents\u27 belief in mediation. Part VII summarizes the findings of this study, noting the major similarities in responses between the three types of respondents, as well as the differences. All three types of respondents generally ‘believe in‘ mediation and have favorable views of mediation on a variety of measures. They are generally satisfied with their mediation experiences, but they generally do not believe that ADR would help them personally, and expectations about potential personal benefits are not associated with belief in mediation. Most respondents believe that their organizational superiors, leaders in their profession, and top corporate executives have favorable views of mediation and ADR. Although respondents generally believe that mediation often saves time and money as compared with traditional litigation, their belief in mediation seems to be most strongly related to perceptions that mediation helps preserve relationships and that business\u27 top executives are often satisfied with the results in suits where mediation is used, especially relative to suits where mediation is not used. For the attorneys, belief in mediation is also associated with satisfaction with their experiences with ADR and perceptions that their organizational superiors have favorable opinions about ADR. For the executives, belief in mediation is associated with perceptions that their professional leaders have favorable opinions about ADR.Part VIII discusses the implications of the findings, including theoretical interpretations of the findings, offers possible strategies for mediation proponents, and cautions about potential problems with continued 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 with key actors in professional and organizational networks in pursuit of increased legitimacy. Based on this analysis of institutionalization of mediation, mediation proponents should take measures 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. Part VIII includes cautions about institutionalization processes, including the potential for dysfunctional transformation of mediation practices during the process of routinizing mediation, as well as unexpected de-institutionalization.Finally, Part IX 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 cannot directly answer that question, it does suggest that the existence, shape, and diffusion of such an ideology could shape dispute resolution practices for decades to come. Part IX also suggests that continued institutionalization of mediation may require a balance of true believers in mediation and more qualified believers, and that signals sent through professional and organizational channels may be critical in continued diffusion (or contraction) of belief in mediation by key actors