Just recently, we discussed the 5 things that all lawyers should know about mediation. In this blog, I continue to present the compelling reasons why lawyers should not hold back on mediation for their clients as an alternative to settling disputes in court. Through this I hope to help lawyers dispel some of the myths and affirm the truths of mediation, giving them a better understanding of what mediation can offer.
At the end of the day, lawyers should not view mediation as a process to be wary of rather, as an efficient and inexpensive alternative to getting both sides to agree to a resolution that will make them look good in the eyes of their clients.
- Mediation doesn’t disadvantage litigation
A common concern lawyers have of mediation is that the other party has initiated or agreed to it for the wrong reasons – to get information, relevant documentation and insight into their case rather than to genuinely seek a resolution. This is an unnecessary concern since parties in litigation are already required to exchange full disclosure about their case as per the court rules and ethics under the Australia Professional Conduct Rules regardless of the process of dispute resolution. This means that no new information should be presented during mediation so lawyers need not be concerned that mediation will cause their client any tactical disadvantage at a trial in a court.
Similarly, an invitation to mediation does not represent a weakness in the legal case. Take a mediation offer as a genuine attempt to resolve the case rather than interpret it in any other way. After all, 95% of litigation cases that use mediation are resolved even before trial.
- Mediation isn’t about allowing the other party to assess your client
As a lawyer, your instinct is to want to protect your client from being assessed by the other party and their lawyer as a witness. While that is understandable, it is highly likely that the people in a dispute would have had communicated prior to the case so it’s probable that each side would already be familiar with each other. Your client would have communicated to you their concerns about the other party’s personality and behaviour, and likewise the opposition would do the same. Any perceived benefit in sizing up the other party as a witness for trial surely is outweighed by the benefit of resolving the matter without courts.
- Mediation may give your client a more satisfactory outcome
Mediation is conducted in a mutually convenient setting that facilitates a free flow of conversation between the parties with the benefit of legal advice unlike litigation, which is conducted in a formal court environment and follows a Question and Answer pattern that leaves little room for creativity of thought. Holding open conversations, as in mediation sessions, is likely to make your clients feel more comfortable and able to remember and process the negotiations than with litigation. Remember also that mediation has a higher chance of resulting in a win-win situation for both sides when they agree to a resolution, as compared to if the case was brought to court where it’s possible no party walks away satisfied with the judgement handed down.
- Mediation helps you to analyse your client’s case better
While I stress that mediation does not give either parties any significant tactical advantage whether it’s documentation or in assessing each party as a witness at trial, it does give you the opportunity as a lawyer to review your client’s case. By going to mediation, you will need to present the legal position of your client clearly to the other solicitor and counsel in order to allow them to see where you are coming from. This is the time for you to see and understand the strengths and weaknesses of the case if it were to go to trial and help your client make an informed decision.
- The mediator will ensure fair proceedings
In a mediation session, the mediator is always in control of the proceedings and will ensure full exchange of all information and documents usually before the joint session. Also, there is never any pressure to go into the joint mediation session unless you and your client are ready. If the mediator perceives resistance from the other side or notes that information has been withheld, the joint session of the mediation would not proceed until all concerns have been addressed. Thus, you can be confident that the mediator is there to help your client achieve resolution in the quickest and best possible way and everyone, including the solicitors and counsel, walks away satisfied.
I hope this has helped lawyers to see that mediation does not serve any tactical advantage to anyone and will not harm their cases in the event that litigation proceeds. Instead, it will only give your clients a chance to settle their disputes quickly, conveniently and cost effectively with your legal advice and services. Remember that the mediator is an independent party whose purpose is simply to facilitate the mediation process so the company, business or people involved can control the outcome with legal advice without courts.