Mediation is now a standard contemporary dispute resolution process and is mandated in the Professional Codes of Conduct and Rules for lawyers and by most courts in Australia. How lawyers approach mediation can go a long way to how the dispute is handled and the outcome for all parties involved, as lawyers can be involved in the process and influence their client’s attitude towards resolution. Achieving a good settlement in mediation requires the lawyer to take a different approach than in a courtroom. If you prepare carefully, adopt a candid attitude, have patience and are willing to acknowledge the strengths of the other party’s case, you will find that mediation works well for you and your clients. Here are some of the reasons why:
- Mediation is a voluntary, confidential process in which the parties are in charge of the outcome, and it avoids the risk of athird party (whether judge or arbitrator) making a decision that the parties cannot control, and sometimes not comprehend.
- Mediation is not a weakness, but wisdom. It is a genuine attempt to resolve a conflict without the cost and stress of a court trial for your client and makes you, as the lawyer look good.
- Information which is disclosed during mediation is private and confidential but also may be more effectively used while in these sessions than in a courtroom and may result in a more satisfactory outcome for your client than one decided by thejudge.
- Mediation can help you to better understand the strengths and weaknesses of your client’s case and your advice will help them make more informed decisions to give the best outcome for all involved.
- The mediator will ensure that the mediation session proceeds fairly. If a mediator discerns that there is resistance or that information is being withheld, the joint session of mediation will be discontinued until these concerns have been addressed.
- The mediator is an objective third party and can therefore run proceedings from a less emotive or subjective stance, helping to move the sessions forward towards a more positive and effective resolution.
Mediation is not adversarial, and therefore can be a less threatening and more comfortable setting than a courtroom, making it easier for clients to participate in frank, open dialogue within a structured process managed by the mediator. It is also not group therapy or counselling, although key relationships are often repaired, and even improved, which is an extra bonus for any lawyer involved as they are seen in a positive light for helping to instigate the mediation process.
Mediation is a negotiation-based dispute resolution tool that focuses on identifying the interests and needs that lie behind the parties’ positions. Once everyone’s interests are actually on the table, the process facilitates “win/win” (or at least “satisfied/satisfied”) outcomes that are built to actually address those interests. Mediation is private and confidential, and participation at every stage is completely voluntary. The mediator makes no decisions and does not impose positions or legal rulings on anyone. Instead, the mediator works with both the clients and the lawyers to assist them in designing their own outcome to meet their mutual interests.
So why not put SHAW Mediation on speed dial, and let’s talk about how we can help you achieve your goals for your clients.