The Mediation Process: The Role of Lawyers. Neither is a “One Size Fits All”

Introduction

Those experienced in the Mediation process appreciate its numerous benefits which include its cost effectiveness, timeliness and high success rate in reaching mutually satisfactory solutions. However, there is another important advantage of the Mediation process that is often overlooked and underappreciated and that is, its ability to repair relationships between disputing parties.

This is particularly important in disputes where the parties desire or require a continuing relationship either on a personal level or in business matters. Mediation can not only resolve disputes and protracted conflicts but in so doing, can positively transform or repair valuable and critical relationships.

The Mediation process is not a one size fits all static process but is instead a dynamic and flexible process that can be tailored to fit particular types of disputes, varied parties and desired outcomes. There are a number of different models and styles of Mediation which can stand alone or be intermingled.

Mediators are generally highly trained and well-experienced and can quite readily pick and choose various skills from their Mediators’ toolbox that fit the most appropriate model of Mediation to suit the parties as well as the dispute. This is a decision that should not be made by the Mediator alone, however, and a Mediator should take on an educative role in advising about the various Mediation processes and discuss and engage the parties and their counsel in this decision at the outset.

Mediator transparency around the various process options is essential and will, early on in the process, help create a relationship of trust and rapport with counsel and parties which, in turn, assists with buy-in. Additionally, legal counsel needs to understand in the choosing of the process, what her client’s goals are and her role, as well as her client’s goals, for the process.

Models of Mediation

Mediation is defined as, the intervention into a dispute or negotiation by a mutually acceptable, impartial and neutral third party who has no authoritative decision-making power but assists disputing parties in voluntarily reaching their own mutually acceptable settlement of the issues in dispute.

Accordingly, Mediation is a voluntary process where the Mediator has no power or authority to force the parties to settle. Mediation is confidential and without prejudice and the essence of any Mediation is that the outcome is voluntary and consensual.

Often in litigation and particularly commercial disputes, the Evaluative Mediation model is used. In this context, the Mediator evaluates the claims of each of the parties in light of the relevant rules and the law and often provides an opinion as to what would likely happen if the dispute was to go to Court or to an Arbitration. In an Evaluative Mediation, the parties are very focused in their discussion/negotiation on the law. This is often referred to as “bargaining in the shadow of the law” . This Evaluative style of Mediation is quite commonly used by retired judges who have become Mediators or senior counsel experienced in a particular area of the law who are hired to broker a deal and are seen to be in a position of power above the parties.

The main criticism of this model is the concern that the Mediator is likely to engage in coercion and manipulation in attempting to have the parties reach an agreement or compromise. Pressure is put upon the parties to reach an agreement ultimately concluding with each trading offers back and forth until a resolution is reached. During the process, the Mediator obtains a complete picture of the problem and the issues and has full information but the parties do not.

Arguably, this is comparable to the adversarial Court process where there is an attitude of blame, right versus wrong and where the governing standard is the law. Hence the traditional way that conflict is approached in our culture. In this context, the Mediator is imputed the type of authority that underlies the judge’s role.
In this context as well, lawyers play a central role and the communication is generally between the lawyers and their clients and directly between the lawyers as they negotiate on behalf of their clients. Subsequent to the parties being together for the initial introduction by the Mediator, the parties are then generally moved to separate rooms and the Mediator moves back and forth between the rooms. The lawyer’s role in this type of Mediation is a more traditional, adversarial approach to legal disputes where there is often concern about revealing one’s entire case so as not to adversely affect what might happen in Court if the matter does not resolve during the Mediation.

Generally the entire process is conducted through shuttle negotiations, with the parties caucusing separately with the Mediator, only being brought back together for a final handshake at the end. This is similar to settlement conferences before judges where, during caucus, judges seek to help each side evaluate its legal position and puts pressure on the parties to settle by pointing out the risks each side faces if the matter were to go to trial.

Thus, the Evaluative Model is an advisory tool where the Mediator acts in a directive manner and is prescriptive in attempting to have the parties reach a resolution. There is still potential for there to be the perception of a winner and loser in this type of model. This style of Mediation is appropriate in certain circumstances and for particular types of dispute, however, is not appropriate for all types of disputes and issues between parties. Generally, it does not assist in healing the relationship between the parties.

Another common style of Mediation is the Interest-Based process. In this model, the Mediator’s role is more of a supervisory role in structuring and overseeing the process and assisting in facilitating discussion and negotiation between the parties. Although there is some focus on the law and the parties’ legal positions, an attempt is made to move the parties away from positions focusing more on their interest, needs and concerns rather than who is right or wrong or to blame in the dispute.

This is a discussion-based process focused on what the parties really hope to achieve and to find creative ways to meet both parties’ interests so that there is a mutually satisfactory resolution at the conclusion.

Because parties have the personal need to be heard and acknowledged, discussion between the parties, is, in my view, a critical element to any Mediation process where the parties’ personal relationship is paramount and reconciliation of the relationship is one of the desired outcomes.

In this type of conflict, another model of Mediation is appropriate which is related to and derived from the Interest-Based process but takes it a step further. In the Understanding-Based approach , the process is more party centered where the parties take primary responsibility for getting the dispute resolved and strive to work together to make decisions jointly. The process involves the uncovering of what lies beneath the parties’ positions and really focuses on mutual understanding and joint problem solving.

While the legal argument and the importance of monetary issues are considered as are the legal opportunities and risks involved in adjudicating the dispute, the parties in the process, not the lawyers, are center stage. The parties’ underlying needs are fully explored and sought to be understood by each party. Further, there is particular focus on creative opportunities to create value and expand the pie for the parties. Additionally, there is a focus on repairing the parties’ relationship and the fashioning of a resolution that reflects what are important values to the parties and not necessarily limited to the narrow range of outcomes which a court may consider.

The role of the Mediator in this Understanding-Based model requires the Mediator to explore with the parties the issues that lie beneath the stated conflict and, unlike the Evaluative model, the Mediator resists the use of coercion and manipulation. In this process, generally, the Mediator does not caucus but keeps the parties together throughout, discussing the issues fully in each other’s presence.

Here the Mediator works with the parties in creating a resolution based on a deeper understanding of each other’s views and interests. This can, at times, be particularly challenging for the Mediator where the parties are angry with each other and their ability to communicate effectively is badly impaired. This is where a well experienced Mediator really has to dig deep into her Mediator toolbox to put to use the varied mediation skills and techniques that she has available.

In this approach, the parties are given the opportunity to articulate their story and explain things from their own perspective. When this occurs mutually in the Mediation process, it allows the parties to deepen their understanding of themselves, each other and the reality that they experience.

The understanding that is gained by this deeper level of perceiving the conflict assists the parties to be able to take each other’s views into account along with their own as a foundation for a solution that suits all parties. It is not necessarily the goal to have the parties agree with each other’s views but to simply have them understand where the other is coming from and their perspective.

In doing this, the parties to a conflict ultimately work together to make their own decisions
around resolution as they themselves are in the best position to determine the most appropriate solution. This has the added benefit of providing a template for the parties to work together in the future in a productive and constructive way and to gain confidence in their ability to do so.

Conflict can be multilayered and quite often is not just about money. It has a subjective dimension such as the emotions, beliefs and assumptions of the parties including emotions such as anger and fear, the need to assign blame and the desire for self-justification . This mutual dialogue and resulting understanding can help free the parties from their conflict trap within which they have become entrenched.

The Role of Lawyers

The Mediation process calls upon a different skillset than what is required in traditional lawyering. The role of a Mediation advocate differs quite substantially from that of litigation advocate. A transition is required from zealous advocate to settlement or solution advocate. The Mediation advocate role is that of a problem solver and it requires the ability;

to communicate skillfully with lawyers, agents and parties concerning the most effective way to maximize the needs of the parties in the Mediation.

In fact it has been stated that; the lawyer who is an open-minded, problem solver will generally provide the best service to the client in the Mediation process.

A Mediation advocate carries the same responsibility for advancing clients’ interests as any other advocate or representative. The context in which they will do this and the strategies they will adopt in order to be effective are, however, different in Mediation than in conventional negotiation or adjudication. The aptitudes unique to the role of the Mediation advocate include not only technical legal skills and strategies but also personality attributes and attitudinal sets. The latter are not taught in law school and can be quite foreign to the traditional role of litigators. These aptitudes, however, are essential to the effective use of the Mediation process and to the lawyer providing a valuable contribution to a successful outcome.

There are seven important steps to effective Mediation representation, most particularly Interest Based and Understanding-Based Mediation. I will briefly describe and explain each.

• Appropriate Case Selection
An “openness” to Mediation is the first practical step and involves an appraisal of whether Mediation is an appropriate alternative to adjudication, given the client and the particular circumstances of the case. This includes an early assessment rather than just prior to trial. The reasons include the obvious time and costs savings potential as well as an increased likelihood that a mediated resolution will be reached before hard feelings develop and before the parties get entrenched in their positions.
• Client Education
The second step is client education. It is essential that the Mediation advocate take the opportunity to inform and explain to the client about the Mediation process. This could include describing the various Mediation process options, explaining the advantages and disadvantages of each and comparing each to the adjudicative court process. It is important to have the client on side (informed consent and cooperation) so that the client as well as the Mediation advocate come to the process with a joint understanding and a willingness to put in a good faith effort towards resolution.

• Preparation

The third step is preparation which is as important for the lawyer/Mediation advocate as it is for the lawyer/trial advocate. It is thus important for the Mediation advocate to conduct a thorough file review, ensure that she has all the necessary information and documentation and has a good understanding of the legal evidence and legal issues, as well as a clear understanding of what is negotiable. It should also include an assessment of both parties interests and needs as well as an assessment of her clients options if the case does not resolve. (BATNA- best alternative to a negotiated agreement- Fisher and Ury)
• Adopt a Collaborative Role

The fourth step involves an acceptance and embracing of a collaborative role. Once the Mediation has commenced, the advocacy role of the Mediation advocate is quite distinct from that of the trial advocate. Although the goal is still to best represent the client, the tone and attitude involves a more conciliatory representation using a collaborative approach to problem-solving. Such an approach encompasses an interest based orientation of understanding not only of her own client’s needs and concerns but the needs and interests of the other party. In other words, exploring what is motivating her own client as well as what is driving the dispute for the other side.
• Communication

This entails different communication and listening skills that otherwise might be employed. Communication plays an extremely vital role in the Mediation process. Thus the fifth step is to focus on all aspects of communication. It is essential to speak effectively, use body language effectively, listen effectively and process body language effectively. By speaking effectively, the Mediation advocate wants to create an environment where the other party is comfortable and therefore hears and is receptive to the Mediation advocate and her client’s message.
In addition, by listening effectively (listening with understanding) the Mediation advocate is tuned in to the other side’s interests and thus able to gain a better appreciation of the other side’s needs and concerns. This will assist greatly in the Mediation advocate’s ability to come up with creative solutions.
Communication for a Mediation advocate also includes information sharing. Mediation requires a “radical reconceptualization of the nature and uses of information.” Thus, the Mediaton advocate’s attitude toward the disclosure of information and her ability to identify information essential to early resolution is a very important communication skill.
The interpretation of non-verbal communications and the ability to deal with emotions are skills that are valuable to the Mediation advocate. Very often in the process the parties express their emotions or “vent”. Thus the ability to empathize and demonstrate understanding are useful skills as are the Mediation advocate’s rapport building strengths.

Shift in Locus of Control

The sixth step is to allow a shift in the locus of control from lawyer-centered to client-centered. The Mediation process is client centered: the clients themselves play a central and active role in the discussion and negotiation process. There is, quite often, direct discussion between clients in a Mediation session. This is quite out of the ordinary for lawyers who are generally used to being in control and doing most of the talking. Thus, an ability to let (relinquish control) and be less directive is an asset, allowing the Mediation advocate and his client to be able to “work effectively as a team”.
Integral to the Mediation advocate’s ability to surrender control is his ability to “empower” the client in this client centered process. This involves a “shifting” of power to the client so the client’s goals move the process and the client participates in a large part in the decision making process and the ultimate decision. Accordingly, this envisages an attitudinal skill, a “power with”. In other words, the power of the team (“the collective”) focusing individual abilities on a common goal. Further, the negotiation strategy for a Mediation advocate is no longer zero sum, “value claiming” but “value creating” and collaborative negotiation and problem-solving. In other words, an “integrative” approach to negotiations.
• Use Creative Problem-Solving Abilities
Lastly, the Mediation advocate’s “creative” problem-solving abilities are crucial to the process. Creativity in this context means in effect, “thinking outside the box of conventional legal solutions” thus assisting in broadening the options generated or the “integrative possibilities”.
Adjustments in mindset and skills required of lawyers in these new processes and the altered relationship with their clients are necessary to be effective in this new problem solving environment. Clients, both corporate and personal, have different needs and wants from their lawyers, changing patterns and themes in the changing nature of legal practice.

The New Lawyer

The concept of the evolution of legal counsel in a changing landscape is the subject of a fairly recent book, The New Lawyer: How Settlement Is Transforming The Practice Of Law, by Dr. Julie Macfarlane. In her book, she discusses how changing client expectations, a new role for legal counsel and a new model of client service demand a more holistic, practical and efficient approach to conflict resolution. She argues that a new model of lawyering practice provides legal expertise as a primary and unique skill requiring both client communication skills, good writing skills and persuasive oral advocacy skills but are used in different ways in negotiating settlements within these processes.

Dr. Macfarlane describes the goals of the process as “information exchange” and the “exploration of options”. The new lawyer understands that not every conflict is really about rights and entitlements and that these are conventional disguises for anger, hurt feelings and struggles over scarce resources. She proposes that the new lawyer’s role is to assist her clients in identifying what they really need, while constantly assessing the likely risk and rewards as well as what they believe they deserve in some abstract sense.

She further proposes that the new lawyer also understands the purpose and potential of information in settlement processes and that information is used as a valuable shared resource which broadens the range of possible solutions. The new lawyer recommends that types of outcomes that will be commonly discussed and promoted will be different, relationship centered, heavily pragmatic or simply expedient. The new role of conflict resolution advocate skillfully uses communication, persuasion and relationship building.

Communication skills such as listening, explaining, questioning and establishing rapport and trust is a primary vehicle for the resolution of conflict. The importance of interpersonal communication skills as well as emotional and legal intelligence including attributes such as empathy, self-awareness, optimism and impulse control are important qualities for an effective new lawyer. A new lawyer recognizes the importance of persuasive communication in conflict resolution and a greater concentration on what the other side in the dispute needs and wants. This requires being in tune with the other side’s interests and needs.
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Dr. Macfarlane further makes the point that most clients wish an expeditious and practical solution at a reasonable cost. The new lawyer must find a new way to meet their clients’ goals which are the achievement of effective, appropriate and sustainable outcomes within a reasonable timeframe. .

A new lawyer sees her client as a partner in problem solving with a new mutuality of both purpose and action between lawyer and client; the client participates more actively in planning and decision-making in the conduct of negotiations with the new lawyer offering a participatory model of compassionate client-centered professional service. She argues that this is an evolving model of legal practice and client service. Dr. Macfarlane states:

A new lawyer will conceive of her advocacy role more deeply and broadly then simply fighting on her client’s behalf. This role comprehends both a different relationship with the client, closer to a working partnership…and a different orientation to the conflict…Conflict resolution advocacy means working with clients who anticipate, raise, strategize and negotiate in conflict to implement jointly agreed outcomes.

A new lawyer has a deeply held personal and professional commitment to a just settlement with a true understanding of the principles behind this commitment.

Conclusion

In the present legal landscape in which we find ourselves, it is important that lawyers educate themselves and understand their various process options. This will enable them to take on a decision making role, along with their client, as to what model of settlement process they would like to embark upon. This is very much dependent upon the goals for the Mediation process and what, in particular, the client hopes to achieve. This should be fully explored with the client at the outset.

A different attitudinal approach and skill requirements will be called upon depending upon what process is chosen. Having a repertoire of not only litigation advocate skills but also Mediation advocate skills will serve legal counsel well into the future.