Insurance companies and their lawyers in road accident mediation: Usual players shaping the game rules

Court-related mediations have become commonplace in many legal systems around the globe and Argentina has not been an exception. In this paper I focus on road accident mediations taking place in a public mediation center in Córdoba (Argentina), where mediation is mandatory for an important range of cases. In this research I attempt to grasp the set of practices carried out by insurance companies and their lawyers in those mediations. To endeavour to do this, I rely on the concepts and ideas developed by Pierre Bourdieu as well as on Marc Galanter’s analysis of usual players and the legal system. Drawing on observations and interviews I identify, analyse and compare the strategies, positions, and capitals of insurance companies (and their lawyers) with those of the mediators and plaintiffs (and their lawyers). I attempt to show how road accident mediation constitutes a particular field, with its own game rules, which are continuously under struggle; and how, in this context, insurance companies and their lawyers attempt to shape the rules governing mediation. I pay special attention to the absence of the defendant/insured at the mediation sessions (even though the mediation law provides his/her mandatory attendance), which means that much of the interaction among the regular participants turns to be in legal terms. The interconnections among the different agents are highlighted as well as the opportunities and constraints their position imposes above their practices. Overall, this research contributes to our understanding of the operation of the legal system (of which mandatory mediation is part) and of the legal profession by showing the contested nature of the mediation style—which it is not solely decided by mediators. On the contrary, each participant brings with him/her a history, a strategy, and an accumulated capital that is put in action against the others’ histories, strategies, and capitals.