In today’s quick-paced and uncertain business environment, in which, on the one hand, electronic transactions are happening with the simple click of a PC mouse and on the other hand, many E.U. countries’ national economies face slow economic growth, stagnation or financial crisis, proliferating commercial disputes, mediation is more needed than ever for both clients -physical persons or companies- and legal professionals.
Mediation can briefly be described as an extrajudicial private -civil or commercial- dispute resolution process, in which parties and their lawyers seek a settlement agreement with the even-handed assistance of a mediator, a specialist trained in psychology, negotiations and law (most often a legal professional with additional training and accreditation). This agreement in many countries is ipso jure or becomes, through a simple additional process, an enforceable act.
In order to keep the present article concise and accessible to readers who are unfamiliar with mediation and its different international models, I am compelled to indicate that it is based on the facilitative mediation model, which prevails in the E.U. and includes some generalizations in an effort to find a common denominator between European mediation processes provided by E.U. countries domestic mediation laws, which include more variatıons than alluded here. It is also an important aspects list rather than an exhaustive how-to list, which would also often prove unfit for a dynamic mediation process, in which surprises and unexpected developments are almost certain to occur.
Mediation offers some advantages that make it particularly suitable for cases in which emotions are high, preserving relations (working, business or family) is important, sensitive information that needs to remain confidential is involved, a swift solution is needed or parties want to determine themselves the solution of their dispute in a manner adapted to their needs:
These are the flexibility and the speed of the process, confidentiality of the negotiations content and lower costs. Lower costs are mainly due to lower process-related expenses than the ones applicable in court proceedings and not to a loss in lawyers’ fees as it is wrongly assumed by some: various fiscal stamps, court bailiff delivery costs, legal interests etc. are avoided. Lawyers' fees are paid by clients in mediation as they pay them before courts. In most countries lawyers' presence in mediation is either mandatory by law or chosen by the parties, in order to receive legal advice during the mediation process, which has significant and binding results for them. The above financial advantages give lawyers who use mediation and regularly propose it to their clients a real opportunity to develop their clientele and to diversify their income sources.
Still, it is noteworthy that mediation being an assisted negotiation, requires both a specific mindset, different from the one required for participation in court proceedings, which are based on the adversarial model and a negotiation-oriented approach for both clients and lawyers. Taking this into account, lawyers’ preparation of clients, of strategy for negotiation and of themselves for mediation present some interesting particularities, which are examined below.
How Lawyers can explain to their clients and to the other party what mediation is and why to choose it
A lawyer’s role in informing the client for mediation is crucial. He/she not only has to explain this process to clients because they don’t have legal background and may not know of it but also has to compare it with other available dispute resolution options (court proceedings, arbitration, conciliation) and their characteristics as well as explain why it suits their specific case.
The lawyer, as a legal expert being familiar with all the above processes -and if not, becoming easily familiar with them through a varıety of more or less lengthy seminars or trainings available nowadays- is the best-suited specialist to provide this input.
Convincing a client to go to mediation may prove not as hard as it may seem on first consideration to a lawyer who has never attended a mediation: he/she can either invoke the numerous advantages of the process aforementioned or just convince the client to consult a mediator together, who shall provide ample information and address the client’s possible emotional tension when referring to the history and other aspects of his/her case.
The same applies to convincıng the other party and his/her Lawyer to participate to mediation; unless prohibited by domestic law, the mediator can contact them and deal in a neutral and empathetic manner with the potential questions and doubts, which may occur from their side. This is not an absolute rule, the way no other suggestion included in the present is absolute; still, a mediator’s communication with the other party and its lawyer in order to introduce mediation to them can be received with less suspicion and preconceived ideas than a call made by the lawyer of the party, which first decided to attempt mediation.
How Lawyers can establish a strategy for mediation with their clients
When both parties are convinced and a mediation agreement is concluded, each side -namely each Lawyer and client- need to prepare carefully together their negotiation strategy for the mediation process to come. Doing so together is needed because in a mediation they act together throughout the process.
It may prove quicker or easier to do it if the lawyer starts by asking the client what they want and help him/her find it, when the client doesn’t know it already. Then prioritization of objectives is required, to both prepare mentally and sentimentally the client for the mediation process, which is a negotiation, often involving give-and-take from both sides. This also allows to help him/her realize that some objectives may not be reached and choose, which the ones he/she prefers aiming at, are.
Then familiarizing the client with the nature of the process (i.e. it being facilitative), its participants and their role (i.e. lawyers, parties, the mediator and other advisors or experts agreed by the parties to be present), its steps (i.e. joint and private meetings, lunch break, other possible breaks) and its aim (a mutually acceptable settlement, which may become an enforceable act under legal conditions), with potential surprises (i.e. a party asking for a break or showing strong emotions) and with their management with the assistance of the mediator.
Identifying each party’s BATNA (best alternative to a negotiated agreement; namely the best that can happen after not settling in mediation) and WATNA (worst alternative to a negotiated agreement; namely the worst that can happen after not settling in mediation) are also crucial. Working on possible scenarios of offers and counter-offers from both sides often also proves important, in order to go to mediation with clear and organized ideas, planned strategies and knowledge of tangible options.
How Lawyers can prepare themselves for mediation
Apart from lawyer’s fees determination for mediation, which is definitely a topic to consider carefully prior to mediation and a sensitive issue each professional deals with quite subjectively, therefore I respectfully abstain from submitting thoughts on, it is undeniable that some other considerations require lawyers’ consideration before starting the mediation main step, namely the mediation day in which parties and lawyers meet and negotiate.
These may be: examining all factual and legal aspects of the dispute (i.e. deadlines involved, liability questions, relevant case-law) as well as the legal and procedural aspects of questions, which may occur during the negotiation (i.e. how long would it take to solve the same dispute in court if it did not settle, which is a quite common question to be answered at some point of the day, which are the legal considerations to have in mind when offering a form of collateral to the other party, if enforceability of the settlement agreement is desired and necessary), which legal considerations are the most sensitive and could derail the negotiation process if mentioned too early and before rapport is built between the parties and the lawyers (i.e. a premature request of an admission of responsibility) as well as which could be the right timing for bringing them into the discussion. All the above are already well known to lawyers who are familiar with negotiations, i.e. contract ones. Perhaps, the following two aspects of preparation for lawyers may prove to be more of a challenge.
Mediation is about assisting one’s client to make choices and decisions. This requires the client to express his/her thoughts, feelings, needs and interests and to acknowledge them. Lawyers used to assuming the biggest part of choices and risks for his/her client’s case management themselves in their daily work, especially the ones of us who regularly litigate, may need to spend time preparing for a less active and vocal role so as to give space to their client’s expression. This in no-way means that they will be absent from the process; they shall actually need to often be silently alert and very present, in order to make timely interventions when appropriate for the benefit of the negotiatıons’ progress i.e. for clarifications or for giving a legal question, which occurred, an answer.
Preparation also applies to finding ways to convince the other party and its lawyer to reach a settlement with one’s client; a strong adversarial approach and attitude during the mediation negotiation phase may create an unproductive environment, a tension and a hostility, which may be excused or needed at times in court hearings, but could lead the other party to feel not trusted, even offended and either not to collaborate in reaching an agreement or leave the mediation table.
Last but not least, a lawyer with some life experience and self-awareness probably understands we humans all have biases and he/she is no exception to this. Preparing for mediation can also consist of assessing one’s own biases before the mediation so as not to let them hinder the process and do disservice to the client’s needs.
A well-prepared client and a well-prepared lawyer significantly increase their chances of reaching a satisfying result through mediation, despite the process’s potential surprises or challenges.
I thank you for your time and attention.
April 28, 2017