How to be effective lawyers during mediation
Sometimes, when settlements are not reached at mediation, it could be due to the adversarial stance of the lawyers. As legal advisors, lawyers wield great control and influence over their clients. When lawyers see mediation as a trial, namely, by adopting hard-line positions and refusing to compromise, their client will inevitably follow suit, adopting the same stance. Instead, lawyers at mediation play a different role (from that in litigation) and need to apply the skills of mediation advocacy in a mediation setting.
Once lawyers have chosen mediation, their frames of mind need to change i.e. they need to facilitate deal-making. They need to view the other party and their lawyers as partners in the joint process of discovering what the common interests of the parties are, in order to bridge the gap and achieve an amicable settlement. Lawyers need to respect the role of the mediator and support the mediator.
The recent amendments to the Legal Profession (Professional Conduct) Rules 2015 highlight that a legal practitioner must always be:
i. respectful of the ADR process and the adjudicator, mediator or other person conducting the process;
ii. courteous in the conduct or presentation of his or her client’s case;
iii. act in good faith;
iv. not knowingly mislead or attempt to mislead in any way an adjudicator, a mediator or other person conducting the ADR process; and
v. not knowingly assist or permit his or her client to mislead an adjudicator, a mediator or other person conducting the process.
Lawyers can be effective mediation advocates by:
• Looking past the legal positions and legal rights. Instead, they should try to understand the disputants’ underlying interests and find the parties’ common interests. Otherwise, see if divergent interests can be served by a common solution;
• Recognising the areas of conflict and the dynamics of the parties’ relationship, then developing an effective response with the collaboration of the opposing counsel and mediator;
• Re-establishing trust between the parties by neutralising or changing parties’ perceptions of each other; and
• Being aware of their client’s BATNA (Best Alternative To a Negotiated Agreement or what the best outcome is if there is no settlement) and the point at which leaving the negotiating table is the best strategy.
Once the respective lawyers have assessed and concluded that mediation is the most suitable recourse for their client’s situation, they could assist their clients to prepare for mediation. Preparation for mediation begins with working with an institution to appoint a suitable mediator(s), preparation of the case summary and supporting documents, prepping the client for mediation in order to maximise the client’s settlement benefits and increasing the chances of having a successful mediation.
For more information on Preparing for Mediation, look out for the next issue of our newsletter.
For more information on mediation, please visit www.mediation.com.sg.
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May 2017 Issue. For past issues, read more here.