Experience in North America has shown that lawyers who promote Mediation in appropriate cases build greater empathy with their clients, retain them more easily, are seen to be concerned with minimising their client’s expenditure, and thereby are paid promptly and in full. They also enjoy the added benefit of good publicity among the clients’ acquaintances and friends leading to a potentially larger client base.
So where’s the Problem
Most people view using a solicitor or barrister as a necessary evil, either in business or their personal life. In some cases they will avoid the use of lawyers at any cost, except when required to by law or when the situation has got so bad that it cannot be avoided. In a lot of cases the use of legal services generates no financial return for the client and can have a significant emotional cost. The bottom line is that the majority of people do not see going to court as a rewarding and fulfilling process. This view is not unique to Ireland and is a commonly held view in the UK and America also.
America is a very litigious society, however the use of Mediation is widespread, it is actively encouraged by the judiciary and mandated for certain types of cases. Mediation is one of the legal processes in America that seems to be perceived by clients as positive. Mediation in Ireland is still viewed with a large degree of scepticism, in light of the perception that Mediation will result in lower legal fees generated by the lawyer because the case settles sooner and with less acrimony. This is not the case if we take the right approach and learn from America how to embrace Mediation fully. It is so beneficial for lawyers that is difficult to understand why we in Ireland do not utilize it more often and not just limit it to Family Law.
The opportunity that mediation offers the Legal profession in Ireland, in light of the lessons learned from America, is the focus of this article. Mediation allows the Client a number of positive experiences and if handled correctly these positive experiences accrue to the lawyer’s benefit. These can be as simple as
- Getting paid faster. (better cash flow)
- Getting paid the full amount invoiced. (less bad debts)
- Repeat business from your client. (higher turnover)
- New business from your client’s social circle. (better brand awareness)
The challenge is to manage the transition from the old way of doing business, to the reality of a very different business environment that we all find ourselves in today.
How does Mediation Help
To get an understanding of how Mediation will ultimately benefit your business we first must look at it from the client’s side. First of all Mediation brings a mutually acceptable solution to the problem and an agreement is reached in 80% of cases. So why is a mutually acceptable solution so important to a client? There is only one main answer to why this is so important, and the more experience a party has in attending court proceedings the more importance they will attach to this. Judges can be unpredictable and Juries in defamation cases are notoriously unpredictable!
For this reason experienced clients see going to court for a resolution to be the most unpredictable method to resolve their dispute and inexperienced clients do not appreciate this. Most people are familiar with the saying “when you go to court, everybody loses”. Because of types of evidence, the way it is presented, and the importance attached to it by the court, no one can accurately predict the decision that will be handed down by the court.
Most of the time, the decision is not satisfying to any of the parties and they all leave the courts with a feeling of not having been properly heard and dissatisfied. The problem for each legal team is that much of the dissatisfaction can be transferred to them. This happens particularly when they receive the bill, and have to pay money for an outcome they are unhappy with or is the exact opposite of the outcome they envisaged at the start.
Reducing client dissatisfaction
The mediation process facilitated by a professional independent mediator helps to avoid this client dissatisfaction and also any transference of the dissatisfaction to the legal team. By making the client responsible for the resolution of the agreement, the client is accountable for the result of the mediation. In this case there is no Judge, Jury, Arbitrator, or even a lawyer the client can blame. Mediation is voluntary and client lead so if the proposed solution is not acceptable to the client he should not accept it and either look for alternative solutions or end the mediation and take his chances in court.
Mediation is defined by a process of seeking a mutually acceptable agreement to resolve a dispute. Therefore the clients are jointly responsible for accepting any agreed solution to the dispute. The vast majority of mediated agreements are long lasting and acceptable to the clients, because they have considered multiple solutions, their BATNA (best alternative to a negotiated agreement) and have worked towards the optimum solution to resolve their dispute.
Gain new Business using Mediation
Your client in a mediation can see you in action up close and personal. Mediation is client lead, with the client doing must of the talking. Therefore a client is going to rely heavily on his lawyers during the mediation process to help him tease out the best solution to resolve the dispute. In any mediation there are always a lot of balls in the air and this process is the ultimate opportunity for the lawyer to show their client just how good they are, the extensive experience they have, their ability to juggle multiple options and how they work for the client’s interests.
Mediation is a unique environment which allows an opportunity for the client to participate directly in the process of solving the dispute, state their interests and needs, and then see them taken into account in the final agreement. This is so rare that any client with experience of the court system, while involved in a mediation, knows that they are witnessing the opportunity of a lifetime to resolve their dispute. Usually in court the client feels that they are very limited in what they get to say, if they get to say anything, or may feel that what they did say was taken out of context. With the help of a lawyer experienced in mediation advocacy and the mediation process, a client can get their message across to the mediator and feel that everything is being taken into account. The lawyer has now the opportunity to shine by giving clear, expert, and informative advice to the client, helping the client (in his mind) to look good and make the best decisions.
At this stage the lawyer can secure their position as the best source for the client to have used for the resolution of this legal matter and therefore by deductive reasoning, the best source for the resolution of future matters that the client may be involved in. From the clients point of view there is nothing as convincing as entering a mediation process, with very little understanding of what will happen, and have their lawyer steer, advise and support them to get the best possible agreement. Often clients are truly amazed that they have reached agreement at the mediation, when they thought that the dispute was a lost cause.
Having a detailed understanding of the perspective of the client in a Mediation gives the lawyer the ultimate tool for showing the client why he is the right legal advisor for the client and why he deserves to have all the business for which the client needs professional legal assistance in the future. The experience in America has been that legal practices who have successfully resolved disputes by way of the mediation process, can end up with their clients entire legal portfolio, even if the client has only come to them to resolve a particular dispute.
Your service is seen as good value for money
Having resolved the dispute, the next most important issue a client has is cost. This can also be viewed as the “perceived value for money” for the client. Generally speaking mediation is less expensive than would be the cost of litigating the dispute in some other forum, including Arbitration. Mediation is a very much faster process, generally speaking most mediation’s can be brought to agreement in a single day, sometimes a long day. In complex disputes another day or two may be required, however it is rare that a mediation would last more than three days. It is internationally accepted that the mediation process is 70% quicker than the court process. The time spent in Mediation is real time (in the clients mind) spent working towards agreement, interacting constantly with the parties, exploring options, refining solutions.
This is very different from the clients perspective of attending court, where they feel there is a lot of hanging around waiting for the case to be heard. For clients this is wasted time and therefore bad value. Also a mediation can be done at the convenience of the client and not the convenience of the court. At a mediation clients experience the lawyers constantly working towards agreement, and feel that they are “getting their money’s worth”. These are areas where clients really feel the benefit of the mediation process.
In Ireland the current perception is that lawyers leave clients off to “attend a mediation” and then report back on the proceedings. In some types of mediation in Ireland all advisors, including legal, are specifically excluded from the process. At Mediate Ireland we fundamentally disagree with this approach, we believe that clients are unable to make informed decisions on aspects of the agreement, unless they have the relevant advice to hand. We strongly believe that a lawyer should be present during a mediation to advise the client, as the ultimate goal is a binding enforceable agreement between the two parties.
A strategy of using Mediation, if proposed by a lawyer to a client, is the best opportunity to show a client that you as their lawyer are concerned with the total capital outlay of resolving the dispute. You are seen to have concern for saving the client’s money. Most clients who have been through a successful mediation, proposed by their lawyer, said that they were really able to see the value of their lawyer, and their lawyers advice to choose Mediation as the method of resolution was a highly valuable decision which contained the cost of the process of resolution.
In a mediation process the mediator is paid prior to the start of the mediation day. This is an ideal time for a legal practice to ask their client to bring their account up to date. It is our experience that if this is handled correctly it is a very effective way of improving cash flow at a time when cash is in short supply. It also helps the mediator in the mediation process if all legal fees are paid up to date, as the parties are more likely to agree if the differences are small at the end of the mediation day, rather than restart the process and start paying again.
Keys to successfully embracing Mediation
The areas discussed above are the keys to successfully growing your legal practice by embracing mediation, and this is coming from experience of legal practices in America. From a client’s point of view a legal practice that is seen as good value,
- Is concerned about saving a client’s money,
- Provides a forum where the client feels his interests and needs are taken into account,
- Is seen to provide clear, expert, and informative advice to the client,
- Helps the client to look good and make the best decisions.
Such a practice will have a distinct advantage over its competitors in the current market place. So much of business is word of mouth, and yet so much legal work goes on out of sight of our clients. The mediation process gives legal practitioners an unrivalled opportunity to show their talents in clear view of their clients. If done well, Mediation will secure a lawyer’s place in their client’s minds, as the best value and the most concerned legal practitioner they have ever had.
A happy client is a repeat client and they will tell their friends.
If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 087-2268394 to discuss your requirements or organize a mediation.
For more information on our mediation services CLICK HERE
Mediation Advocacy Training
Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.
For more information on our training programs CLICK HERE