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Legal research reveals underuse of mediation facilities

30 May 2017

The commercial mediation community now has some hard data on what their clients think of the service they provide, with some surprising results.

A Senior Lecturer in the Faculty of Law at Victoria University, Grant Morris, has carried out New Zealand’s first research surveying the users of commercial mediation services. He found that although users rate the quality of commercial mediation in New Zealand, they don’t use this approach to dispute resolution as often as previously thought.

“Getting to grips with what these users think of commercial mediation is a bit like the Holy Grail for mediation professionals and the lawyers who engage them,” says Dr Morris.

“Until now, people have said it’s too difficult to find out who the individuals using mediation services are because mediations are typically private affairs.

“The way around this was to concentrate on specific commercial areas, for example, on mediations revolving around insurance claims. That meant we could identify the end users of the mediation process – the claims managers for insurance companies – and then survey and interview them as to what they think of the process.”

Dr Morris says that mediators, lawyers and users all agree that New Zealand’s mediation industry operates to a very high standard. What was revealing about the research was that the users don’t use mediation as frequently as the mediators and lawyers think they do.

“There was a lot of anecdotal evidence about how people were turning to mediation over court proceedings but, until now, we didn’t have any real evidence to support those assumptions.

“It’s an exciting finding for the mediation community since it suggests there’s room to grow the market for mediation services, if mediators and lawyers can influence perceptions about the effectiveness of mediation.

“The next question is whether these findings apply to mediations involving other types of commercial disputes – in the construction industry for example. Insurance companies are relatively familiar with mediation because they’ve been using this approach for quite a long time. It’s a much newer innovation in other areas of the economy, so there’s always the chance we’ll get some very different results.

“The good news is that now we have developed an effective methodology for identifying and surveying mediation users, we can start building a comprehensive picture of the commercial mediation market as a whole.”

Dr Morris carried out this research in collaboration with the Resolution Institute as a Victoria University Summer Scholarship project. The Summer Scholarship programme pairs Victoria University academics with senior students to research a specific part of the academic’s project, while the students develop skills and knowledge to prepare them for further study.

He worked with fifth-year law student Freya McKechnie on the research, and will be presenting their findings at the Global Pound Conference for dispute resolution users in Auckland on 31 May.

Last updated on the 30th May 2017