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- Title
When Mandatory Mediation Meets the Adversarial Legal Culture of Lawyers: An Empirical Study in Italy.
- Authors
Indovina, Vittorio
- Abstract
This paper presents the findings of a qualitative research study that assessed how lawyers enculturate mediation in their professional practice, and what role, if any, pro-mediation policies play in mediation enculturation. The study was conducted in Italy where, since 2010, a statute has mandated a pre-trial introductory meeting on mediation for a wide range of civil disputes. The author held semi-structured interviews based on an anthropological model of enculturation, and analyzed the data from twenty interviews of civil lawyers who were exposed to quasi-mandatory mediation. The study found that the Italian model of quasi-mandatory mediation significantly influenced lawyers' mediation enculturation process. Quasi-mandatory mediation induced many lawyers to learn about mediation, and encouraged them to take action to better understand the mediation process. But in the process, some misconceptions about mediation emerged. The few lawyers who had preexisting collaborative attitudes toward dispute resolution demonstrated the most important behavioral changes. For those lawyers, the legal requirement to attend an informational mediation meeting encouraged them to suggest that their clients opt-in and mediate their disputes. Absent any legal obligation, even lawyers with a positive attitude toward mediation were reluctant to suggest mediation to their clients. In general, the study found that lawyers suggested mediation to their clients on a case-by-case basis based on a combination of factors that significantly limited the potential use of mediation. Lawyers often described mediation as a settlement-oriented process, and made no reference to other objectives of mediation. Relatedly, some lawyers showed a tendency for mediation co-optation: adopting a mediation process rooted in distributive logic and expecting an evaluative or directive role from the mediator. The author concludes that, although Italian lawyers significantly altered their practice in response to the quasi-mandatory mediation law, it remains unclear if they fully and appropriately enculturated mediation.
- Subjects
ITALY; MEDIATION; LAWYERS; SOCIALIZATION; SEMI-structured interviews; OBEDIENCE (Law); PROFESSIONAL practice
- Publication
Harvard Negotiation Law Review, 2020, Vol 26, p69
- ISSN
1556-0546
- Publication type
Article