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
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).