As a lawyer you will probably be required to attend mediation at some point during your career, either for court ordered mediation or perhaps utilizing mediation prior to or during proceedings as a method to try to reach agreement. Mediation may also be a prerequisite to filing and also a term of a contract. There are many ways that lawyers can come into contact with mediation and be a part of the mediation process.Do you feel comfortable, equipped and confident representing clients at mediation? Do you know the role of an effective lawyer at mediation? Do you hijack the mediation process? Lets find out how to be truly effective…..
Is Mediation Alternative?
Mediation is often thought of as an alternative, as its classed as “Alternative Dispute Resolution” suggesting its opposed to litigation, however, it often runs parallel to litigation and in many areas forms part of the litigation process.
A lawyer’s role varies according to the type of mediation. For example, in court ordered mediation, the lawyer sits in the drivers seat, so to speak. The lawyer usually opens with a position paper/statement and speaks on behalf of the client in the mediation process, with the client providing instructions in the background. The mediator may be spending much of his or her time exploring with lawyers and their client potential weaknesses in the case and acting a shuttle between both parties.What about private mediation, where the facilitative method is often used? How do lawyers conduct themselves? Do you act as an effective representative, in such a way that is most valuable for the mediation process
What’s Your Style?
Choose your style of behaviour at mediation from the following, it may be surprising?
- Do you arrive at mediation with a draft document with standard clauses?
- Do you engage in an adversarial contest with the lawyer on the other side, thinking mediation is similar to a pre-hearing or settlement conference?
- Do you and the lawyer on the other side excuse yourselves to engage in your own discussions outside the mediation process?
- Do you insist on a formal deed to record the outcome of mediation?
- You play a passive role because you aren’t really interested in mediating; only litigating?
- Do you act like you are in control and put on a show for your client?
- Do you negotiate and advocate for your client, as well as make aggressive and inflammatory opening statements?
- Do you treat mediation as an adversarial method of settlement between lawyers?
- Make submissions, which pressure the other side to settle prior to the mediation finalizing?
I consider these types of behaviours as part of the “hijacker lawyer” profile!
Alternatively, do you:
- Act as an advisor and consultant?
- Actively encourage your client to participate and involve himself or herself in the discussion, negotiation and decision making process?
- Allow the client to speak, vent and negotiate on their own terms?
- Assist your client to realistically assess any settlement proposal?
- Allow the mediator to guide the parties through the mediation process?
- Take a secondary role by listening to both parties and step in where appropriate to advise your client and steer their discussion?
- Participate at mediation in a non-adversarial manner?
- Try to reduce any power imbalances?
- Prepare Terms of Settlement or Heads of Agreement reached at the end of mediation for signing by parties, prior to leaving mediation.
These form part of the “most effective lawyer at mediation” profile! I think the way lawyers act at mediation can make a big difference to the outcome.