It is perhaps best at the outset to remark that I write this book with no axe to grind.
I am neither a practicing mediator nor practicing lawyer (although as a university
educator of would-be lawyers as well as current and potential mediators I have
a vested interest in both). This book is no practice guide or ‘how to’ manual for
lawyers interested in mediation (of which there are many excellent examples). Nor,
it should be said, is the book a mediation purist’s diatribe warning against the perils
of lawyer entanglement with the process. Rather, I hope through this work to tread a
cautious and balanced path through the thorny terrain of the lawyer’s relationship
with, and role within and on the fringes of mediation.
This project was inspired by my own research begun some 16 years or so ago
into mediation in Scotland, my field work and observations since and discussions
with lawyers, mediators, mediation users and academics on the complex and
controversial nature of the lawyer’s interaction with the process. This book owes
a heavy debt to the wealth of empirical studies and theoretical analyses into
mediation and lawyers undertaken by scholars internationally. The breadth of
scholarship is breathtaking. Mirroring this international academic interest, the
modern mediation movement is itself a global one, albeit that progress across
different jurisdictions and in relation to distinct dispute areas within and across
countries has occurred at widely diverging paces. As I shall illustrate in the chapters
to come, to some extent at least, it may be said that the pace has been set by lawyers.
They can be considered both accelerator and brake.