Representing clients in mediation

An essential new professional skill

Concluding his two-part series.  Marcus Stone reviews the main features of mediation and the new role which it creates for solicitors.  Part one outlined the mediation process and its significance for lawyers.  In this second part the new professional skills required for practice in this field are examined.

A solicitor’s function in representing clients in mediation is best described as “mediation advocacy” to distinguish it from forensic advocacy.  The differences will become apparent in the course of this article.

New skills and old skills

Use of new skills in mediation does not imply devaluation of the traditional ones, for example, legal judgment, exercising powers of analysis, skill in oral presentation, drafting written pleadings and negotiating terms of settlement in litigation.  Most lawyers develolp these skills as a result of personal aptitude and experience in practice, rather than by any formal training.

Most of these skill scan make a powerful contribution to competence in mediation advocacy.  Sound legal judgement and advice to clients will be required in mediation from the outset until final settlement.  But the use of traditional skills is not enough.  In mediation, something more is required.  Certainly, experienced solicitors who have not mastered mediation advocacy may achieve satisfactory settlements for their clients.  They would, however, be much more effective and could achieve much better outcomes if they had the required competence in the new forum of mediation.

The essential difference between forensic advocacy and mediation advocacy consists of the contrast of objectives.

In court a lawyer seeks to win a contest.  He questions witnesses to elicit evidence supporting the facts which his client asserts.  On that basic he presents arguments designed to show that, in law, his client is right and the other party is wrong.  The objective is a favourable adjudication.

While this is the theory of litigation, in practice what happens is somewhat different.  Around ninety per cent of actions never reach the stage of adjudication.  They are settled, often at the doors of the court.  If this is contemplated from the outset, the way in which the case is conducted in court really becomes a form of persuasive negotiation.  Whether the case proceeds to adjudication or is settled however, the goal is to win a contest. 

In mediation, on the other hand, the aim is to achieve a mutually beneficial outcome by means of co-operative and creative problem solving.  The objective is a voluntary agreement which satisfies the interests of both parties.  While a mediated dispute may start as a conflict between two parties, the process is designed to transform this into a harmonious search for a solution by the parties and the mediator.  There will be no decision at all about who was right and who was wrong – although naturally a party’s view about this may colour his negotiating attitudes.

This concept must dominate the process.  The mediation advocate’s function before and throughout a mediation hearing is, with his client’s collaboration, to work with the mediator and the other party to that end.  How this is done at each stage will be outlined in the rest of this article.

Explaining mediation to clients

When a solicitor is first consulted about a dispute, attempting to negotiate a settlement is often the first step. If this fails and litigation is contemplated, it is submitted that it is a solicitor’s professional duty to explain the option of mediation properly to his client.  Although negotiations may fail, this is no bar to successful mediation, because of its special features.

Even where a solicitor is capable of the transition from an adversarial goal to the mediation approach he has still to convey this to his client, clearly and effectively.  This will become less difficult as the practice of mediation and awareness of its merits increase.  In giving this explanation, the widely known drawbacks of litigation, which were reviewed in Part 1 may be emphasised and the advantages of mediation should be made clear.  The main appeal should be to the client’s real interests, not his position in law, although this is a factor for consideration.  The undesirability of delay, risk and high costs are potent arguments.

Decision to mediate

While explaining the option of mediation to a client is a duty, the decision to refer the dispute to mediation is not.  That is a matter for professional judgement.  But a solicitor should only reject the option of mediation with the agreement of a properly informed client.

A decision to mediate will depend on the suitability of the dispute for mediation, the solicitor’s advice about the prospects of litigation, and the attitudes of the parties.

Almost any dispute is capable of being referred to mediation.  The main exceptions are usually where a party requires some legal declaration of a right or a precedent or a legal remedy, e.g. an interdict, or where there is a policy of seeking judicial decision of a dispute with consequent publicity, for its deterrent effect.  Most commercial or delictual disputes, however, do not exhibit these features.  Disputes involving substantial value or technical complexities are frequently mediated successfully with immense savings in cost to the parties.

Advising the client about the prospects of the alternative of litigation needs no special comment here – except that it should be realistic and should take into account the attendant disadvantages of litigation.

The main determining factor, however, is whether both parties genuinely wish to try to resolve the dispute by means of mediation.  Overwhelming optimism is unnecessary.  All that is needed for the process to work is a sincere attempt, albeit with reservations.  Without this, a mediation may simply degenerate into an argument.  The hardest task in mediation is to get both parties to the table.  Once that has been done there is a high probability of success.

Arranging the mediation

Once it is decided to refer the dispute to mediation, parties must agree on the appointment of a completely neutral, qualified mediator, his/her fee and expenses, and on a venue, date and time.  Mediations can be arranged within a few weeks and usually last for one day.  These arrangements are embodied in an Agreement to Mediate – usually in a standard form.  Various mediation agencies or individual mediators can progress all these matters.

Written submissions to the mediator

A week or two before the mediation the parties must send the mediator, and exchange, written submissions stating their positions.  There is no prescribed format or content for these submissions.  They should be concise, clear and objective statements of a party’s position in as diplomatic a form as possible, with a view to co-operation.  Nothing which is unnecessarily provocative should be included.  The purpose of the submissions is simply to set out the issues as seen by each party.  They are not designed to prove anything so only documents which are essential for comprehension of the dispute should be attached.  It would be premature to include any proposals or suggestions for settlement at this stage.

Preparing for a mediation, unlike a proof, is really planning for negotiation.  Due to limitation of space, only salient points can be discussed here.  Preparation should begin at the time of deciding to mediate as a co-operative effort between the solicitor and the client.  the aim should be to overcome obstructive feelings and misunderstandings and to focus on the client’s real interests rather than his legal rights.  There should be a determined attempt to predict these aspects of the other party’s case.  A preliminary investigation of options for mutual gain which would satisfy each party should be undertaken.  The client should be prepared to play an active part in the process but in co-ordination with his solicitor.

Representing clients in the first joint session

A mediation starts with the mediator’s introductory explanation of the process, the procedure, and his/her neutral and facilitative role and objective which is to help parties to find and agree their own solution to the dispute.

Each side then presents its case in the order decided by the mediator.  Both the parties and their solicitors should do this as planned.

Presentations need not take any special form but desirable features are brevity (perhaps by referring to the written submissions), clarity, objectivity, courtesy and diplomacy.  This starts the interactive process between all those present, which should lead to rapport, mutual trust and co-operation.  It is important to demonstrate recognition of the opponent’s position.  Displays of emotion should be avoided.  Arguments would be counter-productive.

It is too soon to open negotiations at this stage.  The joint sessions set the scene.  Good presentations should lay a foundation for constructive negotiation by means of the mediator’s shuttling between private sessions.

Representing clients in private sessions

In the private sessions the mediator interviews each side separately in total confidence.  The mediator will only disclose to the other party anything that he/she is expressly authorised to disclose.  This confidentiality combined with the mediator’s neutrality and the fact that the whole process id conducted without prejudice to a party’s right, creates a safe forum for frank disclosures.

What usually develops in alternating privat sessions is a productive psychological pattern of activities facilitated by the mediator’s range of techniques.  The role of the representatives is to co-operative in this process. A detailed account of the methods used by mediators and by trained representatives in mediation cannot be given here but a brief description of the above psychological pattern will suffice for insight into what takes place.

The first step is to remove obstacles such as feelings of hostility by allowing them free expression and diverting the discussion in a constructive direction.  Misunderstandings can be cleared up by permitted communications between the parties.  Other obstacles are an adversarial insistence on the party’s rights and bargaining from fixed positions.

The aim is that a party will depart from the rigid position which he asserted at the outset and which cannot be reconciled with that of the opponent.  He will be encouraged to disclose his underlying concerns and real interests.  Mutual understanding of each other’s real interests will be developed, leading to a degree of trust and co-operation.  These interests can often be reconciled by ‘dovetailing’ them or, even better, by joint and innovative problem solving which leads to mutual gain (win-win).  More specifically, the parties invent options for mutual gain, evaluate them and agree to the terms which meet their interests and end the dispute.

A representative who understands this process can do a great deal from the time when he is first consulted, to accelerate and enhance the progress of a mediation.

Final Joint Session – Agreeing Settlement

Once the mediator is satisfied, by shuttling between parties, that they are in agreement on the terms of settlement, a final joint session will be convened where these terms are embodied in a written document.

Although mediation is voluntary the intention is that it should result in a legally binding written agreement, this being a task for traditional legal skill.

Sometimes, where some contingency must be satisfied at a later date, before an outcome can become binding, a mediation may be concluded by a non-binding aide-memoir setting out the terms to which the parties have agreed.

Acquiring the skills of mediation advocacy

Cleary, representing clients in mediation demands a major shift in perception from the traditional adversarial approach to disputes.  With due respect for traditional skills, the best way to acquire those of mediation advocacy is by means of an intensive two-day workshop.  This represents a small investment in time for acquiring competency in a new and highly successful form of dispute resolution.

This will be worthwhile.  Although Scotland lags behind England in the use of mediation, its inherent merits and rapid growth round the world guarantee that it will become mainstream practice here as has happened elsewhere.