Mediation 2.0

Mediation 2.0

Mediation as a service to be delivered to two parties in a conflict on a voluntary basis is not a viable proposition. There are too many problems at the demand side. New value propositions are needed. Mediation 2.0 is likely to consist a number of services that are integrated in other access to justice mechanisms.

This is the conclusion of a position paper (in Dutch) by Barbara Baarsma of  SEO economic research and HiiL academic director Maurits Barendrecht prepared for the Dutch Mediation Institute and the Dutch Ministry of Justice. Baarsma and Barendrecht investigated 6 potential explanations for the low number of mediated cases in Netherlands and elsewhere.

Mediation may be an unknown product, transparency of quality and costs may be a problem and positive external effects are not fully internalised in the price. But the most likely cause it does not sell is that a mediator needs two buyers who are unlikely to agree on a way to resolve their conflict (known as the submission problem in the dispute resolution literature). Moreover, facilitative mediation cannot guarantee a fair outcome if the dispute is of a distributive nature (about money or allocation of assets).

So mediators better find ways to integrate their services in other dispute resolution products and they increasingly do so. Many lawyers, paralegals and legal expenses insurance companies now use mediation methods. Judges use such techniques in the court room. Government agencies, and companies facing many potential disputes integrate them into complaint handling mechanisms.

This integration could be done in a much more transparent and effective way. Mediators could sit on cases together with judges in higher value cases, and judicial mediation can be an option for lower value ones. Online dispute resolution with mediation services is another possible way forward. Transparency of quality and costs of these integrated services is an issue. Protocols and best practices for dealing with disputes could ensure that clients know that mediation techniques belong to the state of the art of solving conflicts and what they can expect from lawyers, courts and any other supplier on the market for conflict resolution.

Mediation could also be offered with modules for dealing with distributive issues and for conflict resolution without the cooperation of one of the parties. Innovation is needed and has a huge potential.

Project details

Project leader: Barbara Baarsma & Prof. Maurits Barendrecht
Contact: Prof. Maurits Barendrecht