In many ways I regard mediation and legal approaches as complementary. Mediation considers the well-being of all participants through the lens of interests. The legal approach considers the well-being of the one participant at a time through the lens of rights. Together all angles are catered for.
When the process that has been decided upon is mediation, it is constructive if all actions of all involved fall under the rubric of mediation. That is, it is as counter-productive to bring legalistic interventions into mediation as it is to bring in mediation interventions into litigation.
In a mediation in which participants are supported by their lawyers, participants have the best of both worlds: collective focus on participants’ collective future and individual focus on participants’ individual futures. Mediation with the professional support of lawyers is a system of checks and balances that provides for ongoing relationships and for creating individual futures.
A solution-focused, value adding relationship among participants, lawyers and the mediator forms a constellation in which the mediator is responsible for the process and follows the lead of the participants regarding content; the participants are responsible for the content and follow the lead of the mediator regarding the process; and the lawyers are each responsible to their client and demonstrate this by following the lead of the mediator with regard to the process and the participants, with regard to the content.
This set of slides, above, Mediation Skills for Lawyers explores this complementarity in four sections:
‘What is Mediation?’ distinguishes mediation from settlement conferences; describes mediation and considers ‘How do you know you are at a mediation?’ and ‘How do you know you are not at a mediation?’
‘How mediation is conducted’ describes the stages of mediation and the purpose of each stage in that context considers further ‘How do you know you are at a mediation?’ and ‘How do you know you are not at a mediation?’
‘Role of lawyers’ considers lawyers as trusted advisors; lawyers as champions of the mediation process; lawyers as consultants to all as well as a brief consideration of participants’ roles and the complementarity of the roles of lawyers and their clients.
‘Mediation skills for lawyers’ shows graphically how the greater extent to which lawyers can listen assiduously, think creatively, speak optimistically, decide credibly and recognise the conclusion of the mediation, the more successful will be the mediation.