Mediation: the skilful lawyer

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.

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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

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Mediation and lawyers: roles of lawyers in Complementary Dispute Resolution

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.

Enquiry into Access to Justice

I am alarmed by the disparaging comments about the contribution of mediation to Justice in the Law Council of Australia (LCA) submissions to the Enquiry into Access to Justice Arrangements of the Productivity Commission. Here, I am on my way to identifying the issues as I see them.

In wondering where these issues have come from, I found myself creating a potted history of the relationship between lawyers and mediators in Australia since 1980s.

As I see it, among mediators and lawyers, collegiality has waxed and waned over the last 30 years.  ADR organisations such as LEADR and ACDC, among others, were initiated and developed by members of the legal profession exclusively for lawyers in the 1980s.  By the late 1990s, membership was open to all mediators.  In my experience, a respectful, productive demarcation of the roles of lawyers and the roles of the mediator was the result.  Typically lawyers consulted each other then collectively referred their clients to a mediator.  Mediators referred participants for legal advice before, during and after mediation.

The tone changed in the early 2000s.  During and after presentations at mediation conferences, mediators and lawyers each took exception to how their work and the work of the other was portrayed.  Later in the mid-2000s there were some difficult discussions within and between stakeholders in the National Mediator Accreditation Standards, often dividing along the mediator-lawyer lines.

The difficult conversations took place, the National Approval and Practice Standards were agreed, the Mediator Standards Board was elected and the relationships became more harmonious.  People in dispute had the benefit of the complementary approaches of legal advice and mediated cooperation.  This was a decade or so  in which I thought of myself as practising CDR (Complementary Dispute Resolution).  Participants reached agreements developed from their mutual interests in the context of their rights.  Their lawyers had provided legal advice on the substantive issues, contributed to and reality tested substantive options and procedural alternatives.  Their mediator had provided supportive, even-handed procedural guidance within a cooperative setting. Mediators drafted heads of agreement and lawyers drafted legal documentation. Justice was done; participants were satisfied; implicitly rights were  respected.  The expertise of participants, lawyers and mediators integrated to create tailor-made, practical, respectful, legal, thorough agreements, as it had in the late 1990s.

Now, in the 2010s, as indicated in the LCA submissions,  some estrangement between the legal and mediation professions has resurfaced.  As I read it there are at least three contributing issues.

What is mediation?  Is mediation occurring when a lawyer presides over rights-based, past focused, Act centred decision making process, at which legal representatives do most of the talking? Is a ‘settlement conference’ underway? To me, ‘mediation’ describes an interest-based, future focused, person-centred process at which participants do most of the talking and a mediator manages an even-handed process.  My previous post What is Mediation …? considers this.

What qualifies a mediator?  The LCA submissions express concern regarding the expectations of expertise appropriate for conducting mediations, in particular the need for lawyers to meet the Approval and Practice Standards of the Mediator Standards Board (MSB).  To me the role of the mediator is the antitheses of the role of the positional negotiator and of the litigator, in much the same way as the roles of a physiotherapist and an orthopedic surgeon differ. The qualifications therefore differ.  It is a quite different question to ask ‘What qualifies a chair of a settlement conference?’

How can mediation be considered to contribute to Justice? The legal profession, as described in the LCA submissions, has concerns about the contribution of mediation to Justice and to access to Justice.  More accurately the LCA regards mediation (and settlement conferences?) as an impediment to Justice.

In November 2013 the Law Council of Australia (LCA) tabled its opinion of the contribution of mediation to Justice and to access to Justice. In its  submissions to the Enquiry into Access to Justice Arrangements of the Productivity Commission  the LCA declared mediation to be ‘achieved through oppression’, to use ‘vulgar force’ and to deliver ‘just a settlement’.

338. It has been said that “Mediation is not about just settlement, it is just about settlement”. No doubt it is good for parties to settle cases (and that is what for centuries their professional advisors have helped them to do) but settlement achieved through oppression is not so obviously a desirable end. Then it is just the successful exercise of vulgar force – the very thing that the system of justice was invented to defeat.

339. There are real risks to the parties where the protections of litigation are not available. That is, where there is no guarantee of seeing the relevant documents, where the economic power or strength of character (or even sheer unreasonableness) of a party become the most powerful forces in the negotiation, and where the figure with apparent authority is focussed on achieving settlement, not on redressing the imbalance so as to enable justice to be done.

340. The Law Council submits that those participating in mediation require legal advice and, in many cases, representation. Without access to legal advice and representation prior to participation in mediation or other ADR, participants may not be in a position to fully appreciate their legal rights and options. Mediators are largely restricted from providing legal advice to participants in mediation. In these circumstances, legal representation is crucial for parties to understand their legal rights and obligations and which underlying facts are relevant to resolving the dispute.

My response to the LCA submissions is a heady blend of astonishment, concern and relief. I am astonished that in 2013, after years of cross-fertilisation of ideas during the formative years of the mediation profession, such significant misunderstandings about the contribution of mediation to Justice might still hold currency. I am concerned that a review of the comments is considered. I am relieved that the comments have been made openly.

What I read as the LCA’s misunderstandings probably reflects the dissonance in the assumptions of the LCA and me about people, about the pathways to satisfactory dispute resolution and fundamentally about Justice. 

The LCA recasts people as parties, appearing to me to assume that at the onset of a dispute people lose their humanity, their uniqueness, their instrumentality and gain dependence creating a need for someone to speak for them. “No doubt it is good for parties to settle cases … ” 338

The LCA goes on to assume that there are two pathways to conclude a dispute: rights-based determination or oppression. “… settlement is achieved through oppression…” Referring to mediation 338

These assumptions seem to me to be due to the fundamental assumption that the legal profession are the gatekeepers both of Justice and of access to it and that people are the bystanders. The submissions of the LCA read to me as if Justice is the instrument of those providing it, not of those experiencing it.  “… which underlying facts are relevant …” 340  “There are real risks to the parties where the protections of litigation are not available.” 339

I too make assumptions. They too are open to question.  As I see it, people are the raison d’etre of the Justice system.  Each person is a complex, evolving, adaptive being who has much in common with other people as well as significant differences.  Each person is unique.

To me, there are numerous pathways to Justice, each variously meeting the varying  interests of people and society.  One often overlooked pathway is to do nothing, leaving natural events to meet the interests of people in dispute.  When it comes to  rights, I regard them as a formalised way of the State benchmarking the interests of its people. To me a rights-based approach is is a mismatch for complex, evolving, adaptive human beings. I agree that on a societal scale, for a ‘rainy day’, rights are pivotal to democracy.  On an interpersonal scale,  they are limited in usefulness and often counterproductive.  My rights are your rights, They clash; we clash! 

The big one is Justice which for me is primarily the balancing of the interests, including the subset of rights, of each unique person and their community.  Only when interests-based Justice cannot be reached, with procedural, substantive and personal assistance by participants, I look to rights as a basis for a determination of Justice.

I read the assumptions of the LCA as authoritarian.  They have their place.  I think they are highly appropriate to short, sharp intervention in short, sharp emergencies.  I would feel more optimistic about a constructive dialogue with the LCA if their submissions had the welcoming and authoritative tone of a conversation.

Here’s to a rapprochement phase in the mid 2010s!