I find that dispute resolution is portrayed as either lawyer-lead or mediator-facilitated. Like most binary analyses, this one is simplistic and exacerbates the antipathy between the capitulating and the creative approaches. People are complex. Solutions for people involve complexity. I prefer to have the best of both approaches: Complementary Dispute Resolution. In CDR lawyers fulfill three interdependent roles: trusted advisors, champions of the process and consultants to all. In each role they, like all others involved, complement the roles of participants, mediators and personal supporters.
Lawyers as trusted advisors
- listen assiduously to hear their clients’ evolving expression of what is of importance and of concern
- think creatively to assist their clients to identify core issues and later to contribute options
- speak tactfully to assist their clients to clarify issues and to consider possibilities that could address their concerns and responsibilities
- advise credibly to enable their clients to consider the impacts of other courses of action and to assess the risks of each
- conclude supportively to assist their clients to commit to practical steps to move forward
Lawyers as consultants to all
- listen assiduously to assist their clients to hear what is of concern and of importance to each of the participants
- think creatively to assist their clients to contribute substantive options that are of potential benefit to each of the participants
- speak tactfully to assist their clients to provide considered responses to each of the participants and feedback to the mediator
- advise credibly to assist their clients to develop responses and options that are potentially productive for each of the participants
- conclude supportively to assist their clients to commit to practical steps to move forward with agreements reached by all
Lawyers as champions of the mediation process
- listen assiduously to contribute to the attentive tone of the mediation and by confining most comments to the private sessions
- think creatively about the purpose of each stage to encourage their client to participate in a way that maximises the effectiveness of mediation for all
- speak tactfully to provide their clients and mediations in general with encouragement by noting progress stage by stage
- advise credibly according to the purpose of the stage of mediation and to validate the mediator’s management of participants’ expectations
- conclude supportively to affirm their clients and all present by commenting on participants’ commitment to the process
Mediation Musings 