I hear three common themes when I meet initially with each prospective mediation participant: that relationship breakdown is the cause and the effect of the dispute; that changes by the other person/people would resolve the situation; and that to date resolution has been pursued independently and in competition with the other(s). My perspective is that resolution involves others; it is a venture that is necessarily interdependent. So, to me ‘resolution’ and ‘independently’ are a contradiction in terms. Independent pursuit of a solution inevitably becomes passive and/or adversarial. When it is adversarial people argue and disengage; lawyers contradict and compete; and friends divide and take sides. Passive ‘pursuit of a solution’ means waiting, being dependent on another to change their ways. Resolution is when, for each participant, the degree of satisfaction with a collectively agreed outcome sufficiently surpasses individuals’ degrees of satisfaction with the status quo.
In Complementary Dispute Resolution (CDR) participants, lawyers and support people work cooperatively to maximise the likelihood of a satisfactory agreement being reached, if an agreement is regarded by participants as appropriate. Participants listen, connect and discuss; lawyers listen, advise and support; friends assist all round.
I’ve been reflecting in particular on the role of lawyers in CDR mediation,. My thoughts so far are that lawyers in CDR mediation, whether or not they attend the mediation, make a valuable contribution by fulfilling three significant roles. First and foremost is lawyers’ roles as trusted advisors to their clients; next is their role as champions of the mediation process; and also they can be consultants to all.
A CDR lawyer knows what mediation is and what it is not and so can complement the flow of the mediation process. An adversarial lawyer alternates between fighting the process and being in flight from the mediation. They handicap the mediation and disadvantage their client. This occurs particularly among lawyers who are yet to learn that mediation is not a settlement conference .
In an earlier entry, Mediation roles, I described briefly and in general terms how I see the roles of participants, advisors and support people and the mediator. Here I start to unpack the role of a skilled lawyer in mediation.
This blog entry takes off at a tangent from my entry of a fortnight ago Enquiry into Access to Justice when I had a fair bit to say about (actually, I bemoaned) the submission of the Law Council of Australia to the Productivity Commission. In response to the LCA’s defensive antagonism toward mediation, I mentioned the notion of Complementary Dispute Resolution (CDR) as my preferred way of mediating. In short, CDR is occurring when each contribution of each person in the mediation adds value for each of the participants. That is, when what the mediator does adds value for each participant and what each lawyer does adds value for each participant and what each participant does adds value for each other participant then Complementary Dispute Resolution is underway.
Lawyers as trusted advisors to their clients
In CDR mediation participants instruct their lawyers about their interests and are advised by their lawyers about their rights, which together contribute to participants reaching a robust, satisfactory agreement, if an agreement is appropriate.
As trusted advisors in mediation, I regard it as the role of lawyers to
- follow the lead of their clients and of the other parties to assist with identifying issues for discussion.
- review the risk analysis of their client primarily in terms of interests then in terms of rights
- accept instructions and advise clients regarding their ATNAs and their current BATNA
- fulfil the roles that Bobette Wolski explains in her fascinating PhD
- advise clients of the law that applies
- provide legal information
- evaluate the merits of the case
- project likely results in an adversarial setting
- assess the likely litigated outcome
- promote informed consent
- guide clients toward responsible decision making
- evaluate options from the point of view of their client and others
That is, the role of lawyers is to provide legal advice to complement the participant’s expertise both about themselves and their relationships with the other participants.
Lawyers as champions of the mediation process
In CDR mediation participants and their lawyers maximise the benefit to them and to the other participants of each stage of the process.
As champions of the mediation process, I regard it as the role of lawyers to
- engage with the process, the mediator and all other participants
- follow the lead of the mediator with respect to the process.
- explain the aims of mediation to the client prior to the mediation
- distinguish mediation from a settlement conference
- support the participants and cooperate with the process
- explain the purpose of each stage of mediation
- tailor their advice to the purposes of each stage of mediation
- regard each person in the mediation as pivotal to reaching an agreement
That is, the role of lawyers is to provide advice to complement the process.
Lawyers as consultants to all
In CDR mediation participants invite input from their lawyer that contributes to the progress of the mediation.
As consultants to all in the mediation process, I regard it as the role of lawyers to
- observe the mediation process
- contribute comments as catalysts for progress
- refer to the principles of mediation when advising participants regarding feedback
- assess for best practice
- assess for ongoing suitability
That is, the role of lawyers is to contribute on the basis that the better the overall outcome the more their client will benefit.
In my next entry I will summarise five of the skills of lawyers in CDR mediation that work well with my approach.