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Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs and Gendered Parties (review)

From: Canadian Journal of Law and Society
Volume 25, Number 1, 2010
pp. 117-118 | 10.1353/jls.0.0106

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Increasing numbers of civil cases involve mediation sessions at some stage. However, there is still relatively little known about the nature of mediation that has evolved, and the ways in which lawyers and disputants view and contend with the inclusion of mediation in civil suits. Tamara Relis’s book Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs and Gendered Parties is a timely empirical study of the perceptions of the legal and lay participants in 64 medical malpractice suits that entered into voluntary or mandatory mediation in Ontario. The main focus of the research is on the different meanings and understandings of the litigation and mediation of serious medical injuries by the various actors involved in the process. In addition, Relis compares the views and experiences of male and female professionals and disputants. The study is based on data derived from 131 questionnaires and interviews with plaintiffs’ lawyers, hospitals’ and physicians’ defence lawyers, plaintiffs, defendant doctors, and mediators conducted shortly after the mediation session. The discussion covers issues such as the litigation and mediation goals of each participant, their understandings of the mediation process, and sources of satisfaction and discontent with the mediations.

Relis’s main finding on virtually all the parameters she examined is that lawyers and disputants inhabit “parallel worlds” in which the interpretations and functions ascribed to case processing and dispute resolution are radically different. For lawyers, the focus in both litigation and mediation is money. Lawyers perceive mediation as a venue to highlight the strengths of their position and the weaknesses of their opponents’. It also provides them with an opportunity to deflate the monetary expectations of their own clients. The parties, however, seek “extralegal” goals such as apologies, explanations, and an acknowledgement of their position. They expect that mediation will afford them the opportunity of communicating directly with the other side.

In the contest between these “parallel worlds,” Relis’s research reveals that lawyers dominate the entire mediation process, deciding who will be present, what issues will be discussed, and who the mediators will be. For example, most mediation sessions in this study were conducted in the absence of any oral participation from doctor defendants, who often were instructed by their lawyers not to attend the proceedings. Although all participants were largely satisfied with the mediation sessions, the source of this satisfaction reveals another discrepancy between legal and lay actors: plaintiffs were pleased with the opportunity to vent their feelings and to obtain some sense of emotional relief, whereas lawyers were content to gather information for legal aims, such as to assess the participants as potential trial witnesses. Relis also suggests that mediators’ professional interests in pressuring for settlement and deflating clients’ expectations often coincide with those of the lawyers, from whom they expect future work. From her analysis, mediation—whether mandatory or voluntary—emerges as a hierarchical process that has been coopted by legal actors and bears little resemblance to the voluntary, empowering process described by proponents of mediation.

Two additional findings are highlighted in this research. Relis discovered significant gender differences in the attitudes and experiences of parties, lawyers, and mediators. However, contrary to some feminist theory and research on mediation and dispute resolution, Relis posits that these differences worked to the disadvantage of women. While female parties and lawyers were more sensitive to extralegal elements of the dispute process, female plaintiffs found the mediation process more emotionally difficult than men did, and they were more likely to acquiesce to mediators’ and opponents’ demands. Moreover, female mediators were often viewed as being controlled or overpowered by the male lawyers who were present. Relis notes, however, that these gender results must be viewed with caution because of the small size of her sample.

Relis also suggests that as a consequence of their participation in mediation, many lawyers reconceptualize their own role and become sensitized to extralegal considerations. However, Relis’s inferences are not entirely convincing, and her own research reveals inconsistencies in lawyers’ attitudes. While she quotes many statements that attest to lawyers’ sensitivity to extralegal elements, it is not clear that the lawyers’ attitudes changed as a result...



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