The gatekeepers

Abstract

Mediation is one form of dispute resolution used in resolving commercial disputes in New Zealand. Lawyers play a key role as gatekeepers to commercial mediation. This article explores the role that these gatekeepers are playing in the New Zealand private commercial mediation market. The findings are based on a survey and interviews carried out in late 2015 and early 2016. Prior to this study there was no comprehensive information on the attitude of New Zealand commercial lawyers to mediation. The evidence reported in this article suggests that lawyers are very aware of commercial mediation, and support it, but largely on their own terms. They are not undermining it. In fact, lawyers believe they are contributing positively to the mediation process. Clients have a more limited knowledge of mediation but usually follow their lawyer’s recommendations. Thus lawyers play a key role as gatekeepers to commercial mediation. The main reason lawyers recommend mediation is cost (i.e. it is cheaper than litigation). Lawyers prefer legally trained mediators with experience and a good reputation. Lawyers report high mediation settlement rates and high overall quality of mediations. Overall, the ‘gatekeepers’ are generally happy with the standard of commercial mediation in New Zealand. However, mediation exists to serve the clients, not the gatekeepers. The views of actual users are necessary to complete the picture of the New Zealand commercial mediation market.