Lawyers sometimes use the word “mediation” as if it was synonymous with “alternative dispute resolution”. They are not the same thing. Mediation is an aspect and tool of alternative dispute resolution (ADR).
Lawyers have a clear and undisputed obligation to become skilled in the art of dispute resolution. It is not enough to be skilled in the law, or in a particular field of law that you specialise in. It is not enough to be a good litigator.
“Mediation” is something that may happen along the continuum of “dispute resolution”.
Being skilled in the art of dispute resolution means being skilled in the following things:
– The ability to bring an ADR perspective to any dispute that walks in your door (see my earlier posts on this subject);
– The ability to competently explain the the ADR perspective to a client;
– The ability to effectively communicate the ADR perspective and ADR strategies to the lawyer representing the other side of the dispute;
– The ability to consider the suitability and effectiveness of ADR strategies as soon as your services are engaged by a client;
– The ability to integrate ADR thinking and strategies into early settlement discussions and negotiations with the lawyer representing the other party or parties in the dispute;
– The ability to competently manage ADR timing and processes within the context of any court case management process;
– The ability to identify what ADR strategies best suit the nature of the dispute and when and how to implement those strategies;
– The ability to effectively and efficiently manage the ADR dialogue with the lawyers representing the other interests in the dispute;
– The ability to construct an overall ADR protocol for the dispute to maximize the chances of out of court settlement;
– The ability to determine and assess if and when mediation should occur;
– The ability to properly prepare and the do essential groundwork prior to the mediation day so as to enhance the prospects of success at mediation.
– The ability to communicate effectively with the client throughout the entire ADR process;
– The ability to discern the need for hybrid ADR processes to resolve the dispute or parts of the dispute – e.g. neutral expert determination/mediation/arbitration.
– The ability to discern when to cease ADR and resume Litigation.
“Mediation” per se is simply a cog in the ADR wheel. These days lawyers are not fulfilling their duty of care to their clients by simply telling them that at some point on the continuum of their management of the dispute for the client it may “go to mediation”. All this really means is that the lawyer is conducting “Litigation” and pausing at some point on the Litigation track continuum to take the client off to “Mediation” (either by agreement reached with the other party or in obedience to a court order) in the hope that at Mediation the dispute will settle. Most of these “mediations” are what I call hosted settlement conferences, where the parties are given the chance to settle the dispute before they are allocated a final hearing date.
Skillful mediation involves a lot more in it than simply showing up to a hosted settlement conference, where the mediator acts as host to the lawyers assisting their clients to broker a deal.
Skillful mediation involves –
– Disengagement from the litigation mindset and legal perspective on the dispute;
– Engagement of the ADR mindset and perspective
– Empowering and supporting the clients to resolve their own dispute with expert facilitation skills provided by the mediator and adjunct skillful input from the parties’ lawyers to aid their clients’ evaluation of whatever settlement options emerge during the process.
Is this the reality or just a figment of imagination and wishful thinking?
I certainly does occur, so it is real enough. The downside is that is does not happen often enough.
It is the minority of disputes that get the full coverage I have outlined above.
I have done a full hour video on HOW lawyers can up-skill themselves so that more disputes will gain the full breadth and scope of ADR coverage that I am advocating to become the NORM, not the EXCEPTION. Here is a LINK – to that Video, which you can purchase from iCLE –
All the Best,
Christopher J Whitelaw
Barrister and Mediator
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