The Nationwide Academy for Dispute Resolution

LAWYERS AS MEDIATORS

Do lawyers make good mediators ?
Some lawyers are natural mediators, particularly those who have engaged in a considerable amount of negotiation as part of their legal practice before turning to mediation. The key to being a good mediator is the ability to think laterally and to communicate in a constructive, facilitative, non-judgemental manner. Good communication skills are essential for lawyers. However, whereas lawyers tend to listen for and tune into information directly related to a client's rights and interests mediators need to be able to identify other broader interests of both parties and develop a sixth sense for the "bottom line". Not all lawyers can successfully make the cross over, particularly litigation lawyers. Many lawyers and particularly ex-judges seek to control not just the process but also the outcome and use their authority in an over bearing manner. It should be remembered that a good mediated settlement is not only one which is achieved on the day, but one which neither of the parties subsequently comes to regret due to a feeling that they have been unduly pressurised into making it. The parties need to be convinced that the settlement is satisfactory before they sign it, a compromise which whilst it does not give them all they might hope for is, all things considered, the best that they could hope to achieve on the day.

Mediation Service Providers :
There are a large number of mediation service providers who list and provide mediators. They range from small local mediation schemes to national and international providers. Increasingly in the US and Canada statutory regulation and minimum standards for training and practice are being established. Elsewhere standards and quality control are down to the individual service provider. Training and qualification therefore may range from a few hours introductory advice through to comprehensive training, examination and pupilage. A lawyer wishing to engage in mediation practice must evaluate which service providers have established standards of and codes of practice compatible with the standards and codes of the legal profession.

Is mediation practice a viable career option for lawyers ?
There are lawyers in the US who specialise in both representing clients at mediation and in conducting mediations. For others mediation work makes up as much as 45% of their work load. It has taken nearly 20 years for the US mediation market to develop. The US model provides an example of what may be achieved elsewhere. Already in the UK there are family lawyers who specialise in mediation work. For the time being however mediation work is likely to be a small but potentially increasingly significant part of legal practice.

Can lawyer's avoid mediation work ?
Clearly a lawyer who is asked to represent a client at a mediation has the option to decline the work. However, despite the fact that mediation is a voluntary process, if a mediation clause is incorporated into a contract it becomes a prerequisite to court action so the client cannot opt out.