“Do we have mediation?” CEDR local consultant Cristina Martin questioned delegates at the First Mediation Conference in Moldova. She further challenged delegates: “We have mediation laws, mediation councils, mediation codes of conduct, [and] over five hundred mediators registered, but do we have mediation?” “A little,” was the answer, “but we need to change minds.” At heart lies the eternal economic balancing act of supply and demand, one that any country that is introducing or developing mediation will face.
Demand refers to how much of a service (in this case mediation) is desired by buyers/users (at a certain price) and supply represents how much the market offers at a certain price (e.g. mediators). Stimulating demand is challenging since it relies on people having access to information or being aware of the services (and the quality thereof) in order to make informed choices about whether to use/purchase. However there can be a number of mechanisms that can be used to increase the attractiveness factor of mediation:
- Incentivise parties to go to mediation through lowering the costs to access mediation and/or increase the costs for not going to mediation. For example in England and Wales cost sanctions may apply if parties have unreasonably refused to go to mediation, whereas in other countries it could be that state/court fees are not applied if cases settle at mediation.
- Empower judges to refer cases to mediation and encourage trust in mediators through quality training and accreditation.
- Making potential users aware of ADR processes to educate them about the benefits that mediation can provide.
While introducing referral mechanisms, or training from the supply side may be challenging in and of itself, cultivating a change in culture is always an uphill task due to the different attitudes, assumptions, needs and communication practices that need to be addressed amongst groups. However, having mediation as part of the business or legal toolkit is essential to promoting better business.
In the words of the Moldovan Deputy Minister for Justice, “demand must come from business…” even if patience is required.