It Takes Two to Tango, and to Mediate: Legal Cultural and Other Factors Influencing United States and Latin American Lawyers’ Resistance to Mediating Commercial Disputes

This article examines legal cultural and other factors influencing the resistance to mediating commercial disputes displayed by U.S. and Latin American lawyers. After surveying current contexts in which commercial mediation occurs in the United States and in Latin American countries and summarizing data regarding commercial ac- tors’ knowledge of the benefits of mediating, it analyzes the relatively infrequent use of mediation despite its potential advantages over adju- dicating. Focusing on lawyers, the article next explores factors that influence U.S. and Latin American lawyers when they converse with commercial clients about selecting dispute resolution methods. Analyzing similarities arising from universal decision-making biases and shared legal cultural traditions, and differences flowing from common law and civil system influences, this article argues that all of these factors strongly influence U.S. and Latin American lawyers toward adjudicating and explains why mediation is not used more often to re- solve commercial disputes.

This article concludes by presenting reasons why carefully assessing mediation as a pre-adjudication option helps lawyers counter perceptual, decision-making, and legal cultural biases while allowing commercial clients to avoid the risks and substantial transaction costs inherent in adjudicating disputes.