Mediation
Advantages of Mediation
There really is no disadvantage to the mediation of disputes. In fact, only a few types of cases cannot be benefitted by mediation. Those cases consist of essentially the litigation of legal principals where judicial precedent is required for the public good.
On the other hand, the clients may be somewhat skeptical of mediation. After all, a layperson or a business entity needs to be educated that mediation is not a sign of litigation weakness but a matter of good common sense. The following examples are a number of important reasons why most parties are benefitted by mediation. Unlike litigation, mediation is:
- The least intrusive form of third-party involvement in a dispute and allows parties to retain control over decisions important to their lives.
- A means to tailor outcomes to the needs and interests of the parties which reflect their priorities and preferences.
- A process which can address issues and concerns outside of the pleadings which may be necessary to a resolution.
- A completely confidential forum.
- A forum which empowers the litigants to more fully understand the dispute, including the strengths and weaknesses of their adversary.
- Usually faster and more economical than continued litigation.
- A means to possibly improve relationships between parties or to at least achieve greater satisfaction with the legal system and outcome.
- A hospitable venue for communication to explore common ground, eliminate misunderstandings and to identify true interests.
- A means to avoid zero-sum game and provide an opportunity for a potential win-win.
A New Advocacy
The mediation process does not eliminate the critical role of legal counsel. Preparation for mediation and for trial are certainly not mutually exclusive. Indeed, through mediation the other party must be convinced that you are ready and able to try the case if necessary.
On the other hand, as an attorney, you are more than just an advocate. Ethical practice also includes your role as an advisor and the duty to give candid advice. MRPC 2.1. Such candid advice can include a recommendation that your client may be well served by engaging in a professionally hosted mediation. Cases resolved through mediation normally result in satisfied clients. Such results improve the attorney-client relationship, the possibility of future referrals and overall respect for the legal system.
However, effective mediations require a different type of advocacy. It requires preparing your client for mediation by dispelling them of television notions of what a day in court is like; discussing how the mediation process works; and developing a realistic assessment of value of their case. It requires the advocate to be a good listener and thereby fully understand what brought the client to you, whether the motivations have changed and where the real needs and interests lie. Such an understanding and goal setting is essential to effective mediation advocacy so that at the time of mediation, the attorney and client basically of the same accord.
Additionally, effective mediation advocacy requires a different type of argument and summary. While the facts and the law are still essential, the focus of mediation should be the underlying drivers of the controversy, existing impediments to resolution and possible ideas which may remove the barriers. Mediation provides a safe environment which is privileged and the communication is confidential.
Consequently, as an advocate you have a forum to explore different avenues of resolution, as well as the unique perspective to hear the adverse party’s position in a candid way not available through traditional discovery. In addition, as a mediation advocate it may be possible to reach partial settlements or remove certain impediments to resolution so that a global resolution may later blossom.
In short, effective mediation takes discussion, planning, preparation and real concern for your client. It provides an opportunity for creativity and the exercise of the greatest of human traits: The ability to reason and negotiate.