Mediation in the Modern Legal Practice: An Overlooked Money-Maker?

Measures aimed at popularising mediation often exclusively focus on how the process advantages disputants. In doing so, such measures miss out on addressing the interests of an equally important category of stakeholders – the lawyers. This essay aims to redress this discoursal void by demonstrating the various benefits, financial and otherwise, of incorporating mediation in legal practice. It also looks at the various ways in which the financial potential of mediation can be leveraged to alleviate the agency problem inherent in the attorney-client relationship, and explains how the COVID-19 pandemic presents the perfect opportunity to do so.

I. Introduction

Lawyers come in countless shapes and forms, with varying roles across practice areas and jurisdictions. Even with so much diversity, there is one characteristic that is common to all of them; every lawyer serves as an intermediary between their client and the available legal mechanism(s).1 Lawyers are responsible for helping their clients understand the law and its processes, determine the appropriate forum/mechanism to resolve a particular problem, and achieve the best possible outcome.2 In recent years, mediation has emerged as one of the premier mechanisms to achieve such best possible outcomes.3 As a result, mediation has become a part and parcel of lawyers’ portfolios all over the world. 

Lawyers are increasingly engaging with mediation as counsel, advocates and mediators.4 Such growing engagement impacts how mediations are conducted, their underlying power structures, and how they are perceived by society at large.5 This deep impact has led many scholars to identify lawyers as “gatekeepers” of mediation since the practice of mediation is largely shaped by the way lawyers perceive and use mediation.6 It is well established that lawyers predominantly influence which disputes are referred to mediation, which mediators are chosen and how the overall process is structured, among the other elements of mediation.7 Hence, lawyers’ perceptions of mediation substantially affect and effect the uptake of the process along with its potential benefits. 

Keeping this in mind, measures aimed at popularizing mediation should focus on creating a favourable perception of the process among lawyers. Such an approach has been adopted in part by the USA, where programs intended to increase the voluntary use of mediation have focused more on the lawyers rather than the potential disputants.8 The author submits that an extension of this approach should be adopted by jurisdictions across the world to facilitate the wider adoption and use of mediation. The reason is clear: if we want more people to mediate, we have to convince more lawyers to do so. Accordingly, Part II of this essay will answer the question, “why should lawyers mediate?” by demonstrating the various benefits of incorporating mediation in legal practice. 

Today, the biggest barrier to the growth of mediation is the notion that lawyers’ interests do not typically align with their clients’ interests,9 due to the underlying ‘agency problem’.10 In most legal frameworks where lawyers are paid by the hour, lawyers’ financial interests seemingly conflict with the clients’ interests since faster and cheaper processes translate into lower fees for the lawyers.11 Scholars have observed that many lawyers hesitate to recommend mediation because of this dichotomy created by the hour-based fee model.12 Such hesitancy is likely to continue until the barriers created by this dichotomy are overcome. Part III of the essay suggests an alternate billing model for lawyers to overcome these barriers by leveraging the financial potential of mediation. 

In a bid to promote the uptake of mediation amid lawyers, Part IV of the essay demonstrates how the COVID-19 pandemic has presented lawyers with the perfect opportunity to delve into the world of mediation. The essay then concludes with a call to create more awareness about mediation’s merits, through empirical and analytical studies, among lawyers. 

II. Why should Lawyers Mediate?

The benefits of mediation for the disputants, including cost efficiency, voluntariness, flexibility, and confidentiality, are well-established and well-publicized,13 which explains its growing popularity.14 However, the discourse around the benefits of mediation has left out an important piece of the puzzle – addressing how mediation can benefit lawyers. It is important to remember that there exists an agency problem between a lawyer-client relationship because the financial interests of the parties are never perfectly aligned,15 lawyers may prefer longer, costlier processes whereas their clients’ interests lie in time and cost-effective processes. Therefore, assuming that lawyers will be interested in pursuing mediations merely because it benefits their clients is wishful thinking.16 This should be remedied at the earliest. 

Ergo, the following sections demonstrate the benefits that accrue to lawyers if they incorporate mediation in their practice.

a. Less Paperwork – The Great Equalizer

Lawyers have to put up with more than their fair share of paperwork.17 Litigations are notorious for their gargantuan appetite for documents, with the adage being that ‘there can never be enough documentation’. Other processes such as arbitration, which were introduced to make dispute resolution effective and efficient,18 are gradually becoming plagued by excessive paperwork and inordinate delays.19 A dizzying number of motions, briefs, document discoveries, depositions, court reports, expert witness’ statements, and damage awards have choked these processes, stripping them of efficiency.20 Such a paper-intensive approach could be overburdening lawyers and may be contributing to the workplace burnouts common among lawyers.”21

Moreover, a paper-intensive approach favours lawyers with institutional backing and greater resources, often to the detriment of lawyers with limited resources.22 This can lead to inequality of arms between lawyers and hinder their ability to represent their clients effectively. In document-intensive processes, the available resources often determine who wins and who loses.23 Today, litigations and arbitrations have been inundated by reams of documents, and several lucrative briefs are cornered by the biggest law firms since the associated document review/production burdens are often prohibitive for the smaller players.24 

Mediations, on the other hand, are not as paper-hungry. Geoff Sharp notes that “[d]espite the trend to paper, mediation remains an oral sport.”25 Since the mediator is not a decision-maker and does not need to be persuaded of anything, lawyers have full discretion over the quantum of paperwork used during the process.26 This discretion declutters mediations by enabling lawyers to share only the relevant and ‘accurate information’, which places in context the key elements of claims made by the other parties.27 Such emphasis on “only the most crucial documents” leads to minimal paperwork in mediations and substantially reduces lawyers’ workload.28 

Mediation helps level the playing field in terms of the resources required for effective representation. In that sense, it is the great equalizer. 

b. Greater Control and Flexibility

Lawyers, in consultation with their clients, mould mediations to suit their needs and interests.29 They have the power to choose the mediator(s), the date and place, the structure, and influence the outcome, along with all the other elements of the process.30 Lawyers can choose to submit whatever materials they consider relevant, without having to go through any legal procedures.31 They have full control over the proceedings and can halt or suspend them whenever they deem fit.32 They can also determine the legal and commercial principles that govern the entire process.33

Such increased control comes with increased flexibility. Upon opting for meditation, lawyers are not bound by any external schedules (be that of the courts, juries, or tribunals) and are free to schedule sessions whenever it is convenient for them,34 even on Sundays! They have the option to discuss matters with the other party directly or through communications facilitated by the mediator.35 They can even choose to meet the mediator separately.36 In addition to such procedural flexibility, the range of solutions available to the lawyers to choose from also increases since they are no longer restricted to conventional legal remedies and can tailor solutions as per their clients’ specific requirements.37 

While this freedom is advantageous for all lawyers, it is especially beneficial for in-house counsels, who often bemoan the lack of control over the trial strategies adopted by litigating/outside counsel.38 Given the flexibility that mediation provides, they can represent their employers without having to engage outside counsel and can thus retain absolute control over their “trial” strategy during mediation.39

c. Freedom to Pursue Alternative Remedies

Opting for mediation does not preclude lawyers from pursuing parallel remedies available to their clients.40 As noted in the previous section, lawyers can halt/suspend the mediation proceedings whenever required.41 Additionally, lawyers can continue litigating the matter before courts or tribunals to seek interim/final reliefs during the mediation.42 Having a mediation in conjunction with judicial or arbitral proceedings has two primary benefits: a) lawyers identify the precise issue(s) under contention during the mediation and can argue on these issues better when appearing before the courts or tribunals, and b) there is no delay in the final resolution of a dispute even if the mediation does not result in a settlement.43 

Given these benefits of parallel proceedings, multi-tier dispute resolution clauses are becoming increasingly common in commercial agreements.44 Several jurisdictions have recognised the efficacy of such clauses and have incorporated them within their regimes.45 A report by the International Bar Association notes that ‘courts in a number of well-publicized cases have shown a willingness to enforce [multi-tier dispute resolution clauses]’.46 Therefore, mediation provides lawyers with an occasion to try their luck with different fora simultaneously, significantly increasing their chance of obtaining a favourable result. 

d. Better than Negotiations and Pre-Trial Settlements

Lawyers can enjoy all the aforementioned benefits even if they opt for dispute resolution mechanisms other than mediation, such as negotiations and pre-trial settlements, to varying degrees. However, the use of mediation provides lawyers with a host of benefits that are generally not available in other alternative dispute resolution (ADR) mechanisms.47 Some of these benefits are spelt out in the following sub-sections. 

i) Reduces Power Imbalances

Mediators are trained in managing the power imbalances between the mediating parties. Such management can benefit lawyers representing the ‘weaker’ party by providing an equal playing field and establishing equality of arms between parties.48 

ii) Encourages Thoroughness

Negotiations and Pre-Trial Settlements prioritise speed over thoroughness which hinders the parties’ ability to address the problem comprehensively. As a result, disputes end up often escalated rather than being settled after such processes. In mediations, parties and lawyers are encouraged to be thorough when expressing their interests or raising concerns over any proposals. Hence, parties feel heard and satisfied, which is reflected in the high success rate of mediated settlements. 

iii) Enables Realistic Risk Assessment

Mediation ensures that the dispute is looked at by a fresh set of eyes, i.e., the mediator. The mediator can also help the lawyers by impartially analysing the strengths and weaknesses of their case. Such assessment can help the lawyers develop a more realistic analysis of their clients’ likelihood of success and determine their plan of action accordingly.49

iv) Promotes Real Talk

Lawyers largely focus on the strengths of their clients’ cases and use posturing to increase their negotiating power in direct negotiations and other forms of ADR. Mediators can help eliminate such posturing and provide a space for meaningful conversation. Additionally, lawyers may feel that asking for a settlement may be perceived as a sign of weakness by the other party.50 Mediators can help also resolve this problem by championing settlement on behalf of the lawyers. 

III. Leveraging the Financial Potential of Mediation: Aligning Lawyers’ and Clients’ Interests 

For decades, the legal profession has been grounded in the hourly billing formula, i.e., lawyers get paid based on the number of hours that they spend on a particular case.51 This model entrenches the financial interests of lawyers in lengthy and complex dispute resolution mechanisms.52 It also makes the dispute resolution processes more paper-intensive since lawyers are either paid based on the time they spend drafting written submissions or the length of the documents that they produce, on a per word or per page basis.53 Given these considerations, many lawyers consider efficient and cost-effective processes like mediation to be against their financial interests. Therefore, the hourly-billing framework and its ingrained prejudice against agile mechanisms continue to hinder the growth of mediation, despite its clear benefits for both clients and lawyers. 

The question, then, is whether lawyers’ apprehension that mediation will harm their financial interests is well-founded. As seen above, the conventional framework will have us believe that any process which is fast and cheap will negatively affect lawyers’ finances. However, the author submits that leveraging mediation can provide lawyers with an opportunity to increase their revenues and broaden their client base.54 

Upon embracing mediation, lawyers can increase their revenues by shifting their compensation models to a flat fee arrangement.55 Under a flat fee arrangement, lawyers charge a fixed sum for handling a matter from beginning to end, which disassociates the lawyers’ compensation from the time spent on a particular case.56 Such an arrangement can also be supplemented with bonuses for rapid resolutions (however, a few jurisdictions such as India do not permit such contingent success fee/bonus arrangements).57 The combination of these models enables lawyers to earn significantly more for working significantly less. Moreover, reducing the number of hours dedicated to a particular case increases man-hour productivity and overall revenue (through rapid resolution bonuses) in most cases.58 

This combination may seem counterintuitive to many because it is premised on the assumption that clients are willing to pay more for less work. Such a conception, however, fails to recognise that most individuals, especially businesspersons, place currency on early resolutions of their disputes.59 Empirical and anecdotal evidence suggests that clients value legal services based on the result, rather than the quantum of resources expended, and will hence be willing to pay a premium for early resolutions. In this case, less is certainly more.60 

Clients appreciate mediation for its voluntary, confidential, convenient, and cost-effective nature. It is only logical, then, that incorporating mediation in legal practice boosts client satisfaction.61 That the dispute is resolved quickly through mediation only increases such satisfaction.62 This benefits the lawyers in two ways: a) better client satisfaction leads to more referrals, and b) a shorter average case duration creates an opportunity to fill the time with more clients.63 Together, these factors lead to broadening the client base of the mediating lawyer, lending greater stability to the lawyers’ finances by reducing their dependence on limited clientele. 

Hence, incorporating mediation can go a long way in furthering lawyers’ financial interests by increasing their revenue, productivity, and client base. 

IV. Covid-19: A Catalyst for Embracing Mediations?

The COVID-19 pandemic has taken the world by surprise. Many countries have introduced sweeping measures to prevent the spread of the virus including lockdowns, restrictions on social gatherings, and the closure of public facilities. These measures have profoundly impacted the traditional justice system since courthouses across the world have had to suspend their operations. Even those courthouses which have turned to video conferencing are running on extremely limited capacities and are only catering to a very small number of important and urgent matters.64 All other matters have been delayed indefinitely.

Consequently, the legal profession has been hit hard. A majority of lawyers have not been able to take up many new cases ever since the closure of courts.65 As noted above, most lawsuits that had been filed before the lockdown have also been delayed indefinitely.66 Therefore, most lawyers are without any work and are in dire straits financially. This is true for lawyers based in the United Kingdom too, particularly young independent lawyers.67

Even more worryingly, women lawyers have been hit the hardest. Snapshots from across the UK “show women lawyers encountering a vast range of daunting issues related to the coronavirus outbreak, ranging from stress to income loss, additional caregiving responsibilities, isolation, and hours that don’t stop.”68 These factors have only exacerbated the existing fissures in work dynamics, including gendered expectations and asymmetrical parental labour.69 Several academics have predicted that this will have severe long-term effects on these women lawyers’ finances.70

In these tough times, mediation can be a viable source of income for lawyers. While courts have been shut and travel has been restricted, clients need dispute resolution services now more than ever given the large number of COVID-19 driven disputes, including disputes relating to force majeure, supply contracts, insurance claims, insolvency, mergers & acquisitions among others.71 It is reasonable to say that the work is still there; it’s only the dispute resolution mechanisms that need to be re-considered. Hence, mediation, especially its online iteration, assumes prominence as an indispensable tool for lawyers to continue working. Here, the phrase “every dark cloud has a silver lining” is cliche but true; the current situation presents lawyers with the perfect opportunity to try mediation since it works well with the social distancing and travel restrictions currently in place.72

In addition to the aforementioned benefits of mediation for lawyers, online mediation enables them to represent clients from anywhere across the world, irrespective of the physical distance between them.73 The present situation also presents an opportunity for lawyers to adopt mediation for disputes which would have otherwise been referred to arbitration given the international nature of these disputes.74 These factors open a whole new marketplace that was never available to most lawyers before and can go a long way in embedding flexibility in the working conditions, making the legal ecosystem more conducive for women lawyers.75 

Fittingly, there has been a rise in the use of online mediations through Information and Communication Technologies ( ICTs ) such as MODRON, Immediation and Peacegate which allow for seamless synchronous and asynchronous communication among parties. Lawyers have to bear minimal costs to use them since there are no steep learning curves, no waiting lines, and no need to travel anywhere to attend proceedings.76 International student competitions such as the ICC Mediation Competition, International Mediation Singapore, Consensual Dispute Resolution Competition have collaborated with several ICTs to familiarise both students and mediation professionals with the advantages that these technologies offer.77 As a result, online mediation ICTs are becoming better with each passing day and are empowering lawyers to use them for maximum gains in real-time. 

The culmination of these factors makes today the perfect opportunity for lawyers to try their hands at mediation; they have nothing to lose and everything to gain. 

V. Conclusion

In the words of Victor Hugo, nothing is as powerful as an idea whose time has come.78 Today, mediation is that idea. Its merits make it a win-win for clients and lawyers on both sides of the (virtual) ‘table’. Mediation’s growing popularity is proof that people are becoming aware of its virtues and harnessing it to benefit themselves. However, there are still many lawyers who believe that a faster and cheaper process like mediation, which benefits their clients, does not best serve their financial interests – feeding into the profession’s reputation of thriving on Schadenfreude.79 The author submits that this belief does a great disservice to the legal profession by hindering its ability to adapt to the changing world. 

Similar unsubstantiated beliefs are commonplace among lawyers today because mediation discourse has not been successful at establishing the professional and financial benefits that accrue to the lawyers who enthusiastically incorporate mediation into their practices. Through this essay, the author has taken the first step towards fixing this problem, by enlisting the various reasons why lawyers should mediate and addressing the fallacy that adopting mediation may undermine lawyers’ financial interests. Much more needs to be done though, and this discoursal hole must be plugged through empirical and analytical studies which demonstrate the real-time benefits of mediation for lawyers across jurisdictions. 

Nevertheless, legal and judicial systems all over the world continue to endorse mediation as a viable and effective dispute resolution mechanism. This has been amplified after the ongoing pandemic and there have been numerous efforts to increase the use of mediation from all quarters. Moreover, student mediation competitions have also done a great job at familiarising a new generation of lawyers with the benefits of mediation. Hence, the author remains optimistic about the future of mediation and anticipates a ‘mediation spike’ soon.

---

[1] Su-Po Kao, ‘The Legal Profession as an Intermediary: A Framework for Lawyers in Society’ (2004) 1 Legal Ethics 39; Eli Wald and Russell G. Pearce, ‘Being Good Lawyers: A Relational Approach to Law Practice’ (2016) 29 Geo LJ Legal Ethics 601; Kathleen Sullivan, ‘The Good That Lawyers Do’ (2000) 4 Washington University Journal of Law and Policy 7. 

[2] Austin Sarat and William Felstiner, ‘Law and Strategy in the Divorce Lawyer’s Office’ (1986) 20 Law & Society R. 93; Lynn Mather, ‘What Do Clients Want? What Do Lawyers Do?’ (2003) 52 Emory LJ 1065; Gillian Hadfield, ‘Don’t Forget the Lawyers: The Role of Lawyers in Promoting the Rule of Law in Emerging Market Democracies’ (2007) 56 DePaul LR 401.

[3] Sriram Panchu, ‘Mediation in the age of Covid-19’ (The Hindu, 19 June 2020) <https://www.thehindu.com/opinion/lead/mediation-in-the-age-of-covid-19/article31863358.ece> accessed 04 October 2021; James Wall and John Stark, ‘Mediation: A Current Review and Theory Development’ (2001) 45(3) J of Conflict Res 370.

[4] Ayelet Sala, ‘Attorneys Perspectives of Mediation: An Empirical Analysis of Attorney’s Mediation Referral Practices, Barriers and Potential Agency Problems, and their Effects on Mediation in Israel’, (2009) Stanford Program in International Legal Studies 14, <https://law.stanford.edu/wp-content/uploads/2015/03/AyeletSela-tft2009-1.pdf> accessed 04 October 2021.

[5] Nancy A. Welsh, ‘Making Deals in Court-Connected Mediation: What’s Justice Got To Do With It?’ (2001) 79 Wash ULQ 787; Jeffrey Goldfein and Jennifer Robbennolt, ‘What if lawyers have their way? An empirical assessment of the conflict strategies and attitudes toward mediation styles’ (2007) Ohio St J Disp Res 277.

[6] Grant Morris, ‘The Gatekeepers: The role of lawyers in the New Zealand commercial mediation market; (2017) 2(1) Mediation Theory & Practice; Bobbi McAdoo and Nancy Welsh, ‘Does ADR Really Have a Place on The Lawyers’ Philosophical Map?’, (1997) Hamline J Public Policy 376, 391. See also, Robert Rubinson, ‘Of Grids and Gatekeepers: The Socioeconomics of Mediation’ (2016) Cardozo Journal of Conflict Res 873.

[7] ibid.

[8] Roselle L. Wissler, ‘Barriers to Attorneys’ Discussion and Use of ADR’, (2003) 10 Ohio St J Dispute Res 459, 462.

[9] Alan Mitchell Polinsky and Daniel Rubinfeld, ‘Aligning the Interests of Lawyers and Clients’ (2003) 5(1) American L Eco R 165; Chiara-Marisa Caputo, ‘Lawyers’ Participation in Mediation’ (2007) 18(2) Australasian Dispute Res J 84; Leonard Riskin, ‘Mediation and Lawyers’ (1982) 43 Ohio St L J 29, 30.

[10] Geoffrey Miller, ‘Some Agency Problems in Settlement’ (1987) 16(1) J of L Studies 189; Richard Posner, ‘Economic Analysis of Law’ (1986) 3rd ed, 29 -77.

[11] ibid.

[12] ibid.

[13] Dennis Oricho, ‘Understanding benefits of alternative dispute resolution (ADR) in the work place mediation’ (2010) 2 1 J L & Conflict Res 11; Edna Sussman, ‘Why Mediate? The Benefits of Mediation over Direct Negotiation and Litigation’ (2009) Transnational Dispute Management.

[14] Sala (n 4); Paula Wissel, ‘Using Mediation To Resolve Disputes Is Growing In Popularity’, (KNKX.org, 22 March 2017), <https://www.knkx.org/post/using-mediation-resolve-disputes-growing-popularity> accessed 04 October 2021.

[15] Polinsky (n 9); Miller (n 10).

[16] Sala (n 4), 18; Welsh (n 5).

[17] See Ann Sinsheimer and David Herring, ‘Lawyers at Work: A Study of the Reading, Writing, and Communication Practices of Legal Professionals’ (2016) 21 Legal Writing J 63.

[18] Christopher R. Drahozal, ‘Arbitration Costs and Forum Accessibility: Empirical Evidence’ (2008) 41 U. Mich. J. L. Reform 813; Amit Moza and Virendra Paul, ‘Review of the Effectiveness of Arbitration’ (2017) 9(1) J Leg Affairs & Dispute Res In Engineering and Construction 37.

[19] Sarah Rudolph Cole, ‘The Lost Promise of Arbitration’ (2017) 70 SMU L Rev 849.

[20] ibid; Todd B. Carver and Albert A. Vondra, ‘Alternative Dispute Resolution: Why It Doesn’t Work and Why It Does’ (Harvard Business Review, May-June 1994) <https://hbr.org/1994/05/alternative-dispute-resolution-why-it-doesnt-work-and-why-it-does> accessed 04 October 2021.

[21] David Chambers, ‘Overstating the Satisfaction of Lawyers’ (2014) 39 2 Law & Soc Inquiry 313; Martin Seligman, Paul Verkuil and Terry Kang, ‘Why Lawyers are Unhappy’ (2001) 23 Cardozo L R 33.

[22] See, Leanne Cheng, ‘The Power of Mediation: Exploring Mediation’s Approach to Power Imbalance’ in Joel Lee & Marcus Lim (eds.), Contemporary Issues in Mediation Vol. 5 (World Scientific 2020).

[23] ibid.

[24] ibid.

[25] Geoff Sharp, ‘Effective Paperwork in Mediation’ (Kluwer Mediation Blog, 2 April 2018) <http://mediationblog.kluwerarbitration.com/2018/04/02/effective-paperwork-in-mediation/> accessed 04 October 2021.

[26] ibid; Michal Alberstein, ‘Forms of Mediation and Law: Cultures of Dispute Resolution’, (2007) 22(2) Ohio St J Dispute Res 321, 336. 

[27] Sharp (n 25); See also, David Laufer, ‘How to Prepare for Mediation: The Mediator’s Check List of Key Legal and Factual Issues; (Mediate India, September 2007) <https://www.mediate.com/articles/lauferD2.cfm> accessed 04 October 2021.

[28] Sharp (n 25).

[29] Morris (n 6); Kathy Douglas and Becky Batagol, ‘The role of lawyers in mediation: insights from mediators at Victoria’s Civil and Administrative Tribunal’ (2014) 40(3) Monash U L R 758.

[30] Polinisky (n 9); Caputo (n 9); Oricho (n 13).

[31] Sharp (n 25). 

[32] Douglas (n 29).

[33] ibid.

[34] Oricho (n 13); See also, Scott Mciver, ‘The A-Z of Mediation: Flexibility’ (UK Mediation, 19 June 2018) <https://ukmediation.net/2018/06/19/a-z-mediation-flexibility/> accessed 04 October 2021; Mediators’ Institute of Ireland, ‘Flexibility’ <https://www.themii.ie/flexibility> accessed 04 October 2021.

[35] ibid.

[36] ibid.

[37] ibid.

[38] Joe Tirado and Philippe Cavalieros, ‘Mediation: What in-house counsel expects’ (2013) 10 Mediation Newsletter 16 <https://www.winston.com/images/content/5/8/v2/58780/MediationOctober2013.pdf> accessed 04 October 2021; Sue Reisinger, ‘How In-House Counsel Can Impact Mediations (and Visit With Dogs)’ (law.com, 1 May 2020) <https://www.law.com/corpcounsel/2020/05/01/how-in-house-counsel-can-impact-mediations-and-visit-with-dogs/> accessed 04 October 2021.

[39] ibid.

[40] Marie A. Failinger, ‘Parallel Justice: Creating Causes of Action for Mandatory Mediation’ (2014) 47 U Michigan J L Reform 359.

[41] Douglas (n 29).

[42] See, ICC Mediation Rules 2014, Article 10(4); Sriram Panchu and Vikas Muralidharan, ‘Mediation in India’ (Lexology, 9 September 2019) <https://www.lexology.com/library/detail.aspx?g=d45eed57-db32-40b6-a5e6-edad2363de76> accessed 04 October 2021.

[43] Edna Sussman, ‘Why Mediate? The Benefits of Mediation over Direct Negotiation and Litigation’ (2009) Transnational Dispute Managements.

[44] Jaimie C Kent, ‘Getting the Best of Both Worlds: Making Partnerships between Court and Community ADR Programs Exemplary’ (2005) 23 Conflict Resolution Quarterly 71; Michael Pryles, ‘Multi-Tiered Dispute Resolution Clauses’ (2001) 18 J Intl Arb 159.

[45] Pryles (ibid).

[46] ibid.

[47] Oricho (n 13).  

[48] Sahil Kanuga & Aparimita Pratap, ‘Online Mediation in India’, (2021) 1 CADR J of DR 25, 36; Michael Roberts, ‘Why Mediation Works when Negotiations Fail’ (Mediate.com, July 2002) <https://www.mediate.com/articles/roberts4.cfm> accessed 04 October 2021.

[49] ibid.

[50] ibid.

[51] Herbert M. Kritzer, Austin Sarat, David M. Trubek, Kristin Bumiller, and Elizabeth McNichol ‘Understanding the Costs of Litigation: The Case of the Hourly-Fee Lawyer’ (1984) 9(3) American Bar Foundation Research J. 559; William Kummel, ‘A Market Approach to Law Firm Economics: A New Model for Pricing, Billing, Compensation and Ownership in Corporate Legal Services’ (1996) Columbus L Rev 379.

[52] Stephen W. Jones and Melissa Beard Glover, ‘The Attack on Traditional Billing Practices’ (1998) 20 U Ark Little Rock L Rev 293; Note, ‘Why Law Firms Cannot Afford to Maintain the Mommy Track’ (1996) Harv L Rev 1375.

[53] ibid; Kritzer (n 51).

[54] Gary Binberg, ‘Leveraging Mediation to Increase Revenue and Broaden Your Client Base’, (DailyBusniessReview.com, June 2015) <https://www.jamsadr.com/files/uploads/documents/articles/birnberg-dailybusinessreview-leveraging-mediation-to-increase-revenue-and-broaden-your-client-base-november-2017.pdf> accessed 04 October 2021.

[55] Kritzer (n 51).

[56] Kritzer (n 51).

[57] Jones (n 52).

[58] Binberg (n 54); See also, Martina Sanchez, ‘How Mediation Can Improve Your Workplace Morale’ (Mediate.com, December 2018) <https://www.mediate.com/articles/sanchez-mediation-improve.cfm> accessed 04 October 2021.

[59] Jones (n 52).

[60] ibid; Max Berger, Michael Blatchley, Jessica Carey and Daniel Kramer, ‘Laying the Groundwork for Mediation’ (2017) Financial Services Mediation Answer Book 1-1.

[61] Chris Guthrie and James Levin, ‘A “Party Satisfaction” Perspective on A Comprehensive Mediation Statute’ (1998) 13 Ohio St J on Disp Reso 885; Marc Galanter and Mia Cahill, ”Most Cases Settle’: Judicial Promotion and Regulation of Settlements’ (1994) 46 Stan L Rev 1339, 1356.

[62] ibid.

[63] Jones (n 52).

[64] Panchu (n 3); See Dilip Chakma, ‘Covid-19 Series: The Impact of the crisis on lawyers in India’ (Lawyers for Lawyers, 25 June 2020) <https://lawyersforlawyers.org/en/covid-19-series-the-impact-of-the-crisis-on-lawyers-in-india/> accessed on 04 October 2021.

[65] ibid.

[66] ibid.

[67] See ‘Covid-19 has pushed English lawyers online: Not everyone is happy about it’ (The Economist, 29 March 2021) <https://www.economist.com/britain/2021/05/29/covid-19-has-pushed-english-lawyers-online> accessed on 04 October 2021.

[68] Cynthia Cooper, ‘Work-Life Imbalance: Pandemic Disruption Places New Stresses on Women Lawyers’ (American Bar Association, 18 December 2020)<https://www.americanbar.org/groups/diversity/women/publications/perspectives/2021/december/worklife-imbalance-pandemic-disruption-places-new-stresses-women-lawyers/> accessed on 04 October 2021.

[69 ibid.

[70] ibid.

[71] Baker McKenzie, ‘Covid-19: Implications for the future of Dispute Resolution’, <https://www.bakermckenzie.com/-/media/files/insight/publications/2020/07/covid19-implications-for-the-future-of-dispute-resolution.pdf> accessed on 04 October 2021.

[72] ibid. 

[73] Susan Nuass Exon, ‘The Next Generation of Online Dispute Resolution: The Significance of Holography to Enhance and Transform Dispute Resolution’ (2010) 12(19) Cardozo J of Conflict Resolution 19; Daniel Becker and Andrea Maia, ‘ODR as an Effective Method to Ensure Access to Justice: The Worrying, But Promising Brazilian Case’, (Mediate.com, September 2018) <https://www.mediate.com/articles/becker-odr-effective.cfm> accessed on 04 October 2021.

[74] Baker McKenzie (n 71).

[75] Sally Dyson, ‘COVID-19—kill or cure for the careers of women lawyers?’ (Legal Insights Europe, 18 November 2020) <https://blogs.thomsonreuters.com/legal-uk/2020/11/18/covid-19-kill-or-cure-for-the-careers-of-women-lawyers/> accessed on 04 October 2021.

[76] Baker McKenzie (n 71).

[77] See, Ana Goncalves, ‘Mediating Online is Much More than “Doing it on Zoom”’, (Kluwer Mediation Blog, 28 February 2021) <http://mediationblog.kluwerarbitration.com/2021/02/28/mediating-online-is-much-more-than-doing-it-on-zoom/> accessed on 04 October 2021.

[78] Victor Hugo, Histoire d’un Crime [The History of a Crime] (Arthur Locker tr, 1877) ch X.

[79] Todd B. Carver & Albert A. Vondra, Alternative Dispute Resolution: Why It Doesn’t Work and Why It Does, hbr.org, available at <https://hbr.org/1994/05/alternative-dispute-resolution-why-it-doesnt-work-and-why-it-does> accessed 04 October 2021; Caputo (n 9).

Aachman Shekhar

B.A. LL.B. (NALSAR University of Law, Hyderabad) ‘22