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THE LAW REFORM COMMISSION OF HONG KONG - page 198 / 360

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Misconceptions by lawyers of the role of the mediator

7.17Lawyers can have misconceptions of the role of the mediator in the process such as:

1. The mediator’s job is to give each party an assessment of the strengths and weaknesses of their legal claims;

2.the mediator plays quite a passive listening role and hopes to generate settlement by promoting understanding and empathy among the litigants;

3. because the mediator is impartial, he will prod each party to make a comparable number of concessions; and

4. a mediator is only interested in a settlement and does not care whether its substantive terms are fair.818

Research on the merits of mediation

7.18The merits of mediation identified by researchers are summarised as follows:

1. Economical decisions;

2. rapid settlements;

3. mutually satisfactory outcomes.819  In one survey 77% of the parties expressed extreme satisfaction with mediation.  No more than 40% in any of the mediation or adversarial samples reported being satisfied with the court process;

4. high rate of compliance.  McEwen and Maiman,820 and Pearson and Thoennes821 found that parties are more likely to follow through with a mediated settlement than comply with those imposed by a third party decision maker like a judge;822

5.workable and implementable decisions.  As the details of implementation are included in a mediation agreement, which often is  omitted from a court order, whether by consent or not, this can

818 Idem.

819 Pearson and Thoennes, “Mediation of contested child custody disputes,” Colorado Lawyer, 11(2), (1982) 337-355.

820 “Mediation in Small Claims Court: Achieving Compliance Through Consent,” Law & Society Review, 18(1), at 11-50.  (1984).

821 “Mediating and Litigating Custody Disputes: A Longitudinal Evaluation,” Family Law Quarterly, (1984), 17, 497-524.

822 If relitigation is a criterion for compliance, only 4-12% relitigated - Irving & Benjamin  Family Mediation: Theory and Practice of Dispute Resolution.  (1987).

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