In June 1994, Bristol Law Society (BLS) launched a pilot out-of-court mediation scheme for civil disputes, with backing from the national Law Society.

Two national mediation providers - the Centre for Dispute Resolution (CEDR) and ADR Group Ltd - agreed to provide their services at a discounted fee.

The official launch appeared to be a considerable success.

Yet, by the end of its first year of operation, just 24 cases had been referred to the scheme and only two of those reached the mediation stage.The authors of this article were approached by BLS prior to the launch and asked to provide independent monitoring.

Financial assistance was given by the Law Society's research and policy planning unit.

We interviewed at least one legal representative in each of the 24 cases, a response rate which is sufficient to validate the findings, albeit in the context of a small sample base.

Our research sought chiefly to answer one question: why had so few cases been referred to the scheme in its initial phase?It was found that problems facing the scheme included:-- maintaining continuous exposure for the scheme;-- cost disincentives to engage in mediation;-- nearly half the cases referred came from a major legal expenses insurer, and many proved unsuitable for mediation;-- the initial refusal of the Lord Chancellor's Department to allow details of the scheme to be sent out with court papers from Bristol County Court;-- solicitors' distrust of the mediation process.In just over half the cases reviewed, mediation was deemed not to be a viable option - either because the cases were dormant, or because some intervening act precluded mediation.

In one case the defendant company had entered liquidation.

Bad case selection played a significant part in restricting the number of referrals.Mediation could, in theory, have been pursued in 11 of the cases, but only three of those proceeded beyond the initial referral.

This suggests that the solicitors - as those responsible for determining strategy - w ere the main stumbling block to mediation in those cases.

Only one case foundered on a client's determination to have her day in court, despite the fact that her solicitor saw some advantages to mediating the dispute.Of the 20 solicitors interviewed, 13 claimed that they were prepared, in principle, to refer cases to mediation.

However, this willingness was not generally apparent in the sample cases.

There appeared to be a significant lack of will to mediate or, more generally, to step outside the established way of doing things.Three main areas of objection seemed to influence solicitors' reluctance to refer cases.-- Principled objections.

Mediation was believed to add nothing to competent bilateral negotiation conducted by legal advisers; cases involving points of legal principle would require adjudication; and positions might be so entrenched that mediation would achieve nothing.-- Strategic reasons.

The overriding impression was that solicitors regarded mediation as a potential adjunct to long-established litigation strategies, rather than as a distinct alternative.

There would be little point in mediation if confident of the strength of one's own case; mediation risks generating additional costs if unsuccessful and mediation might expose weaknesses which might be exploited later in negotiations.

-- Institutional or structural handicaps.

Solicitors were concerned about the absence of a track record for mediation in civil disputes; they had doubts about the competence of mediators; and had additional reservations about the risks for the lawyer/client relationship given the unproven nature of civil mediation and the possibility of incurring additional costs.There was no evidence of unprincipled objections to mediation on the basis that solicitors might lose out as a result of earlier settlement of cases.Much remains to be done to convince lawyers of the value and viability of mediation in civil matters.

The great majority of the solicitors interviewed had little or no experience of mediation.

Those who supported mediation most strongly tended to have seen it in operation.

But whether education is enough is questionable.

Although literature on mediation has long recognised that there are cases which may not be amenable to mediation, there has been a tendency to assume that mediation is appropriate for resolving disputes across most fields of litigation, and indeed for resolving most disputes within those various categories.

Such claims remain unproven - a point which those who would advocate compulsory or court-annexed mediation need to bear in mind.

It would be wrong to dismiss practitioners' concerns too quickly.

But mediation sceptics in the profession need to ask themselves two questions: first, how far does reluctance to engage in mediation indicate reluctance to relinquish control over cases? Secondly, how far does it indicate an unwillingness among litigators to question the adversarial mind-set - be it their own or that of their clients?