Mediation - Getting The Best Out Of Your Legal Representative.

I recently attended a breakfast meeting for mediators which was titled "Getting the best out your legal representative".  In essence, this was discussing the role of lawyers as participants in the mediation process. I thought I'd share my notes here.

It opened with a discussion about the way in disputes are resolved and it boiled down to three;

1. There is a reconciliation of interests. This is undoubtedly the best way for all parties involved.
2. When it is decided who is right. Essentially, this is what the law boils down to.
3. Who is more powerful.

We then discussed the different ways to view a problem, and we boiled these down to two:

1. Do you want to be right?
2. Do you want to be better off?

Unfortunately, with the law, what is generated is perceived as 'winners' and 'losers'. It's not unusual (and this came from lawyers in the room) that many of the 'winners' wish that they hadn't used the law in the first place so it's often not as straight forward as it seems.

This reminded me of the description of how the law works, using the story about two children fighting over the last orange in the house. Picture the scene:

There are two children and they come home from school. They rush to the kitchen to get an orange and find that there's only one left in the bowl.

The mother (or father) comes in to the kitchen and sees them arguing over the orange. They immediately come to a way to solve the problem. They cut the orange in half and give one piece to each child.

One child goes and eats their half of the orange, throwing away the peel. The other takes their half and use the peel to do some baking and discards the fruit.

Can you see the problem? The cutting of the orange in half represents the outcome by law. It's judged to be fair. Both child gets a half.

However, when you look at what the child wants to do with their half of the orange, it would have been a better outcome, for both children, to get the part of the orange that they specifically wanted. One only wanted the fruit, the other only wanted the peel.

A discussion, before cutting the orange in half might have led to this better outcome for everyone. This is akin to mediation.

The speaker then began discussing a couple of things. First, that mediation is still largely unregulated in the UK. Secondly, it seems to be apparent, from many practitioners, that people who represent clients don't often know the difference between the two ways to solve a problem as described above, namely, being right versus being better off.

The speaker wen on to discuss the position of some in the legal profession with regards to mediation or ADR. Mainly, that there is a certain amount of antagonism towards mediation in the first place. They described ADR as 'Another Drain on Revenue', that is a loss of fees. Some feel that it is even intellectually unworthy of them to even get involved. After all, it's just talking.

Others simply don't know what to do! A scenario for mediation might involve decisions on interests that are not necessarily anything to do with the legal world but are more to do with business. So what exactly can the lawyers advise on?

Lawyers might find the whole mediation process frustrating. This might be because their litigation experience actually gets in the way of the mediation. Mediation doesn't always require as much nuance as you might find in the legal world.

Finally, there's the question of leadership. Lawyers tend to consider themselves then leaders when their client in in a mediation. In a mediation, that isn't necessarily the case.

So what should we expect from lawyers?

Obviously, there's a need for lawyers to have knowledge of mediation, so, at the very least they know what to expect. In some countries, such as Ireland, it is now a statutory obligation for solicitors to inform their clients about mediation.

They need to have a clear understanding of their clients' business or dispute.

They need to know their clients desired outcome and what flexibility exists in that.

They should be prepared to provide continuity for legal advice - a mediator should allow for parties have access to legal advice when they need it or request it.

Any mediator is going to use 'reality testing'. A lawyer needs to be a prepared for that. This could potentially avoid any embarrassment when their legal advice is questioned.

The lawyer should be flexible enough to accept new information and the things that inevitably come out in the mediation process.

The lawyer should be aware or clear about their client's BATNA or PATNA (Best/Preferred Alternative To a Negotiated Agreement). In fact, the lawyer could help build it before they come to the mediation.

One final thought that was raised was the need for lawyers at all in the mediation process. For the sake of the profession, it was stated that it's important that lawyers engage with mediation and make it a part of the services that they offer. As the speaker said, what would happen if their client's accountant was to offer mediation as part of their business service? What use the lawyer?

These are some of the general points given in the discussion 'Getting the Best Out of Your Legal Representative'.

Do you agree? Is there anything you would add? Let us know in the comments below.