The Nationwide Academy for Dispute Resolution

IMPACT OF MEDIATION ON LEGAL PRACTICE

A view commonly held by many in the legal profession is that mediation is at best some sort of "touchy feely", "namby pamby" process , developed by social workers and the like and best avoided by lawyers at all costs. At worst mediation is a cut price process that deprives lawyers of work and forces the participants to compromise their interests. As such mediation has little to commend it. Is this view justified ?

The truth is that such criticisms are not entirely without foundation. However, before the legal profession rushes to dismiss mediation, it should be remembered that mediation is making sizeable inroads into commercial dispute resolution. Clearly, this being the case, lawyers need to take a closer look at what is involved in mediation to find out why commerce finds it attractive and then to consider its implications for their practice.

Mediation is a catch all description for a variety of third party assisted negotiation processes. Over 28 apparently distinct forms or models of mediation process have been identified by academics studying the phenomena in the United States. Mediation is used amongst others by organisations involved in social work, commercial organisations and by international organisations and governments to assist in the resolution of disputes. It is hardly surprising given the diverse demands on mediation that different models of mediation practice have developed. As stated earlier, mediation is nothing more-nor-less than a form of assisted negotiation. Negotiation is a tool used by lawyers. Lawyers do not reject negotiation simply because non-lawyers also negotiate. Rather lawyers have developed codes of practice for legal negotiation. Equally therefore, lawyers should not reject the use of mediation as a useful tool in their practice armoury but rather need to develop codes of practice for engagement in mediation by members of the profession.

Legal work and mediation.
When deciding whether or not to embrace mediation as part of legal practice lawyers need first to identify those areas of lawyer assisted dispute resolution that can benefit from mediation techniques and secondly to identify an appropriate mediation model for the settlement of such disputes. Regarding the first task, it is important to distinguish between areas of practice amenable to mediation from classes of dispute within a selected area which cannot benefit from mediation. Furthermore, different mediation models work better for some classes of dispute than for others, so there is no single answer to the second task.

Non-legal Dispute Resolution.
Identifying appropriate areas of practice for lawyers to engage in mediation goes a long way towards addressing the concerns regarding the view that mediation is an anti-lawyer, "touchy feely", "namby pamby" process. There is nothing to prevent the lawyer who is so inclined from assisting those with domestic and other social problems, either professionally or in a personal capacity. Indeed where legal rights and duties are central to a client's domestic of social problems the services of a lawyer may be highly desirable to protect the clients interests. However, people often sort out social and domestic problems without the services of lawyers. Bringing the law into play can exacerbate such problems and be less of a help than a hindrance. Friends, colleagues at work or in the "church" and social workers often play a valuable role, acting as third party facilitators in the settlement of social disputes. The lawyer engaging in this type of activity should adopt the mantle of a conciliator or peace maker. This type of mediation is not "legal work", it is social work and social norms prevail over legal rights and duties.

Concurrent legal and non-legal mediation.
Where clients choose to assert rights and duties in order to settle disputes it is appropriate for lawyers to assist in the process. It is not unusual for the parties to social disputes to engage a lawyer and at the same time to avail themselves of social facilitators. Indeed, in such situations lawyers will often advise clients to seek counselling and support. Separating responsibility for social and legal issues protects the lawyer from subsequent allegations of misconduct particularly where a client subsequently regrets the course of action they have chosen to take. Both sets of advisors may well use mediation techniques to assist in the resolution process but it is likely that they will adopt quite different mediation models. There are 4 basic mediation models.

The Rescuer :
The Rescuer believes and states that, 'court is the worst place for people to be'. He tries to keep parties out of court and away from lawyers at all costs. The rescuer is often found in "community mediation centres". The rescuer usually follows a style that does not allow or severely restricts the use of private sessions with the parties. This greatly reduces their effectiveness. The Rescuer Model is commonly adopted by social workers, psychologists, counsellors or other people without legal or claims training. The Rescuer rarely has the knowledge, education, mediation training or expertise to mediate serious commercial, personal injury or insurance cases. Often times the Rescuer Model is excellent for small cases such as neighbourhood disputes involving for instance a dispute about a dog barking and for juvenile restitution matters. The Rescuer is frequently very critical of the courts, lawyers and insurance companies and often engages in "court bashing" or "lawyer bashing".

The Third Party Negotiator :
The Third Party Negotiator is the original "shuttle diplomat". After the first joint session, this mediator separates the parties and keeps them apart. He carries the parties' positions back and forth, filtering and interpreting them the way he thinks best to achieve a settlement. This is an older style of mediation. This style has a problem with parties' perceptions of his neutrality. Parties often begin to mistrust this type of mediator because he is constantly presenting or arguing the other side's position to them. This model of mediation is popular in International Disputes and was used in the Camp David Negotiations.

The Deal Maker :
The Deal Maker also follows a "shuttle diplomat" style and intentionally keeps the parties apart. The Deal Maker is extremely manipulative and may even deceive one or all parties in order to achieve a settlement. He will formulate his own solution to the dispute and then pushes very hard to sell it to the parties. He may attempt to browbeat, intimidate, or coerce a party into accepting that deal. The Deal Maker believes that he knows what is best for the parties. This is the oldest form of mediation and is commonly used in labour disputes. This type of mediator has the greatest problem with the parties' perception of him. He is usually mistrusted by all the parties. The Deal Maker operates on the basis that the "end justifies the means". This type of mediator confuses mediation with arbitration or acts as a settlement judge. Regretfully, it is popular with lawyers and ex-judges turned mediators.

The Orchestrator :
This is the most modern mediation style. The orchestrator asks many questions about the facts, evidence and jurisprudence in the case, using his questions to probe the parties' positions and perceptions. The orchestrator will allempt to conciliate between the parties, focusing primarily on the mediation process. The orchestrator gets the parties talk about liability, damages, costs, verdicts in the area, risks, high-low-average values for the case and the perceptions of the community. The orchestrator tends to employ multiple joint sessions and assists and encourages the parties to communicate directly! The orchestrator does NOT use coercion or "arm twisting" to force settlements. He is the "Guardian of the Process". If he cannot mediate a settlement, he will mediate the process so the parties nearly always obtain some results from the mediation.

The Role of the Lawyer in Judicial and Mediated Dispute Resolution :
When a client seeks legal advise in relation to a dispute the lawyer will first try and establish as many of the relevant facts as possible and then advise the client on relevant legal rights and duties, offering some evaluation on the likelihood of success or failure in asserting those rights, drawing attention to variable factors such as the burden of proof and the clarity of the law at issue. Setting to one side any administrative tasks the lawyer may perform for the client, the lawyer will then invite the client to instruct him, thus leaving the final decision as to whether or not to go ahead with a claim or to resist a claim to the client. Even after the client has instructed the lawyer to go to court the lawyer will often engage in negotiation with the other side and it is not unusual for a case to settle at this stage without going to court. Mediation can assist in this negotiation process. The appropriate model for such negotiations is the orchestrator model. The difference between mediated settlement and third party settlement is that the parties agree the terms of the settlement rather than having the terms dictated to them by an adjudicator, arbitrator or judge.

When is mediation preferable to third party settlement ?
Where there is the potential of rebuilding relationships and even engaging in new joint ventures mediation is able to offer clients something that is not available through third party settlement. Furthermore, if the cost of seeking third party settlement outweighs or restricts the potential benefits, or, the risks of seeking third party settlement are uncertain, a party may well prefer to broker a settlement. Whilst this is often achieved by negotiation between the lawyers, mediation is preferable since it allows the parties to play a far more active role in the negotiation process.

Is mediation an alternative to third party settlement ?
In as much as some cases are amenable to third party or mediated settlement clearly the answer is "Yes it can be" but this is not always the case since many disputes are not suitable for mediation. If there is no justifiable reason for a party to broker a settlement mediation is not a viable alternative to third party settlement. Where a party requires a default judgement there is arguably no dispute in the first place, simply a refusal by one party to fulfil legal duties. The court is the most appropriate forum for enforcing rights.

Does mediation involve unjustifiable compromise ?
A legitimate mediation process should not involve undue compromise. If the mediated settlement is to measure up to standards of fairness and due process, it should involve no more than an elucidation of the relevant facts as the parties view them and provide the parties with the chance to evaluate the risks and available opportunities. The mediator can explore and even suggest potential avenues for settlement and may provide an assessment of the chances of improving on offers during the process. Thus a mediator may tell a party "This is their final offer, take it or leave it." This however falls far short of recommending a course of action. This is the job of the party's representative. The legal representative may indicate that an offer is reasonable and will certainly provide an evaluation of the chances of improving on the offer in court. Neither a mediator nor a lawyer (particularly if contingency fees are involved) is likely to force a party to settle the dispute on particular terms. Coercion, duress and undue influence breach the ethical codes of conduct of both mediators and lawyers.

Mediated versus third party settlement and justice :
Does the compromising of a claim result in unfairness ? Can fairness only be achieved by judicial enforcement of rights ? Understandably many lawyers view the judicial system and the font of justice. Even so, there can be few lawyers who are not confronted with examples of "hard" justice. A trial is like a boxing match. The winner takes all. There is no reward for the looser and however close the result, at the end of the day a miss is as good as a mile. The lawyer still gets paid (contingency fees excepted) and a well fought match can still bring the lawyer a good reputation but the client not only looses but gets to foot the opponent's legal costs as well. It is true that upon times the court can lessen the blow through the assessment of damages taking into account contributory negligence and any failure to mitigate loss. Nonetheless many an "undeserving" claimant has been awarded what is lawfully claimed and conversely many a "deserving" claimant has had a claim dismissed due to a legal technicality. To the extent that justice is "a lottery" a mediated settlement, far from being an unfair compromise, can often get far closer to what would, in general rather than strictly legal terms, be regarded as a fair and just settlement. In such situations it is far more likely that following a mediated settlement the parties may be able to rebuild bridges and maintain an ongoing relationship than would be the case if one of the parties ends up being embittered by the outcome and consequences of a trial. The adversarial nature of the trial exacerbates the situation since, in order to prevail, it may have been necessary to go public with views that would otherwise best be left unsaid.

Time Benefits of Mediation :
The mediation process takes only about a month to conclude from start to finish. It is not unusual for it to take up to a year or more for a major case to be heard by the courts. It is attractive for commerce to settle disputes quickly and put an end to uncertainty about future financial commitments. This enables business men to settle their affairs and get on with business without having to ring fence funds to meet potential liabilities. Payments into court and guarantees for security of costs during the course of a dispute can also have adverse effects on cash flow. The interest that may accrue over a two year period between the commission of a wrong and the court decision can far exceed the cost of the mediation process. The losing party in third party settlement is likely to be ordered to repay this interest to the winning party. If interest is taken into account it may in reality cost nothing at all to settle a dispute using mediation particularly since the interest that accrues over a short period is relatively little.

Legal representation at mediation :
Some mediation service and systems providers, particularly those involved in local and social dispute settlement, strongly discourage legal representation. Other providers, especially those involved in commercial dispute settlement, either mandate or at least strongly recommend representation. Lawyers will normally charge at the standard rate for advice leading up to the mediation and for attendance at the mediation. The key to successful client representation at mediation is thorough preparation both for the negotiation process and in briefing the client on the process. It is essential that the client understands what is required of him during the process, what the lawyer will be doing and furthermore that the lawyer has a clear understanding of the authority accorded him by the client. In consequence, there may be little difference between the pre-mediation and pre-trial workload. The downside for lawyers is that with less time committed to the process than might be the case for a trial there is a potential for less revenue. However, the increased client satisfaction factor can result in more return work and client recommendations may well attract more business in the long term.

If the mediation fails to settle the dispute the client is still faced with the cost and time involved in going to trial. However, frequently many side issues are cleared up during the mediation so that the work involved in going to trial is much less and the trial itself may be considerably shortened. However, it should be remembered that because the mediation process is without prejudice, some of the information revealed during a mediation and above all any without prejudice offers put on the mediation table, may not be used in subsequent litigation.

A lawyer faced with the task of representing a client at a mediation for the first time is strongly advised to do some homework and re-evaluate his role. The lawyer's role as a party representative at mediation differs significantly from that undertaken in pre-trial negotiation. The lawyer should be prepared to advise on broader issues that transcend the legal rights involved in the dispute. The lawyer is likely to learn of issues and interests which would not be relevant in a trial but which are important for the client and which may well be accommodated in a mediation. The pre-trial lawyer will understandably frequently minimise such factors since they cloud the issue where a trial is concerned. However, a mediation advisor cannot afford to push them to one side since striking a balance between these issues and strict legal rights may well be central to the brokering of a successful settlement. Training for client representation at mediation is available and is commended for first time representatives.