The European Commission for The Efficiency of Justice has published a guide to Mediation for lawyers. The purpose of the guide is to raise awareness of the mediation amongst lawyers. The guide highlights various professional challenges, opportunities and incentives for lawyers when they engage in mediation. Some of the topics covered are:
- Mediation as an alternative to adjudication
- Lawyer supported mediation
- What does a mediator do precisely?
- Main characteristics of mediation
- The role of lawyers in mediation
- Mediator selection and appointment
- How to find a mediator
The guide starts from the premises that, lawyers must always review all options when it comes to advising their clients on the choice of the most appropriate dispute resolution process, while taking into account a Lawyers duty to act in the best interests of the client. The guide outlines that a “…Lawyers’ approach to mediation and any other dispute resolution process must therefore be conceptually neutral and the selection of the preferred option must be merit-based and considered from an analytical and objective point of view….”
The guide defines mediation as “a voluntary non-binding, confidential dispute resolution process in which a neutral and independent person(s) assists the parties in facilitating the communication between the parties in order to help them resolve their difficulties and reach an agreement.” This definition is very much in line with the definition in the Mediation Act 2017 which states that “mediation – means a confidential, facilitative and voluntary process in which parties to a dispute, with the assistance of a mediator, attempt to reach a mutually acceptable agreement to resolve the dispute”
At Mediate Ireland we strongly encourage parties to any mediation to actively seek legal advice. We suggest that where appropriate a Lawyer will assist in preparation and/or accompany their client to mediation sessions and the lawyer will inform and advise their client throughout the mediation process.
The mediation process is based on entirely different paradigm than adjudication. This can pose a challenge to lawyers as the functions and tasks of lawyers supporting clients’ participation in mediation is different from acting in an adversarial manner as the client’s lawyer in adjudicative processes. Mediation is not about persuasion on who is right or wrong, historical facts, reasons, rights and arguments of parties are not ignored but they are of less significance, as in mediation they are not determined, judicially or otherwise, and in fact, are usually irreconcilable. Lawyers applying a more cooperative and constructive approach in mediation, can help mediators in effectively guiding the parties to a settlement, thus ensuring that their clients achieve a solution to their disputes which better reflects their real interests and needs.
The guide outlines where Mediation may be a particularly suitable process. These include if any of the following circumstances exist:
- the client expresses a preference for mediation;
- the client expresses a wish to avoid litigation and arbitration;
- the client is contractually bound to mediate before litigating or referring to arbitration;
- the client cannot afford to litigate;
- applicable law / jurisdictional issues arise that make mediation more appropriate;
- none of the issues in dispute is legally complex or novel, requiring judicial or arbitral determination;
- the parties have common business or personal interests that may be jeopardised by the dispute (e.g. an on-going business or family relationship);
- it is important to have a swift resolution to the dispute, in particular, court litigation could have other (internal or external) adverse effects for the client or its business;
- a court ruling would not adequately deal with the underlying concerns, or, for any other reasons, subjecting the dispute to a decision of an external third party (such as a state or arbitration court) would not be appropriate or desirable;
- a lawsuit may only resolve part of the dispute;
- there is a risk that a court judgement would not be effectively enforced;
- conducting litigation is in conflict with other vital interests of a client;
- the subject matter of the dispute is predominantly of a managerial nature;
- the costs of a lawsuit are out of proportion with the interests at stake;
- the dispute may be due to miscommunications, such as, data discrepancies, personal conflict, or cultural differences; or
- it is important for the client to keep the dispute strictly confidential.
The guide concludes that “…mediation is an effective learning process which helps the parties to understand their mutual interests and positions. The mediation process is usually very transformative for both parties. It helps the parties to think more realistically about their claims and interests and encourages them to act more reasonably vis-à-vis the other side. This in turn usually changes the parties’ relationships, restores some forms of communication and co-operation, and helps to rearrange the entire situation and resolve their conflict. As such, mediation can be perceived by clients as a good and positive experience preferable to litigation with its sometimes unpredictable results.”
This is a short outline of the guide which can be read in full by clicking the following link European Commission for The Efficiency of Justice – Guide to Mediation for Lawyers