Before I became a mediator I practised as a litigation lawyer for 25 years. I represented clients in many mediations and, from time to time, it appeared that the parties wanted to resolve. but the lawyers were getting in the way. The cynic in me assumed it was ego, but in reality, it was probably unintentional.
Now, as a mediator, I see that there are several ways that a lawyer can fail to get the most benefit out of the mediation process for their client Not all of them are intentional and many are the result of a lack of insight into how a mediator can assist the parties.
In no particular order, six ways I have observed lawyers negatively affecting how the mediation proceeds are:
- Taking an overly adversarial, aggressive or dominating approach;
- Being underprepared;
- Not preparing their client for the mediation;
- Ineffective communications with their client and the other parties during the mediation;
- Failing to understand the role of the mediator; and
- Not being flexible or open to creative solutions.
Being overly adversarial, aggressive or dominating
When lawyers behave in an overly adversarial, aggressive or dominating way, it can have several negative impacts on the parties involved. These include:
- Eroding trust and cooperation between parties makes resolving harder.
- Creating an adversarial atmosphere that can make it more difficult for parties to communicate effectively.
- Undermining the mediator’s role as an impartial facilitator and making it challenging for the mediator to effectively facilitate the process.
- Increasing tension and frustration among parties, which can prolong the mediation and make it more difficult to settle.
- Limiting the ability of parties to understand each other’s perspectives and needs.
- Impairing the effectiveness of the mediation process can ultimately lead to a failed mediation.
It is important for lawyers to be mindful of their behaviour in mediation and to understand that their actions can have a significant impact on the outcome of the process. By avoiding interruptions, actively listening, understanding the role emotions play, being respectful to others and fostering a cooperative atmosphere, lawyers can help to ensure the success of the mediation.
The best way to avoid your behaviour getting in the way is to work closely with your mediator. A mediator will be able to assist you in guiding you through the negotiation process to ensure that you don’t inadvertently box your client into a corner.
At a recent mediation, I was told in no uncertain terms by one party’s barrister that they “would not be told how to negotiate” by the other side and had no interest in engaging with them. As a mediator, the independent observer, I could see that the parties were not that far away from resolving however the adversarial approach was rapidly making the gap between the parties wider and wider. The mediation was terminated, however a few phone calls over the following days, once the dust had settled, led to the settlement that should have been reached on the day.
Lack of preparation or negotiation skills
If you are not adequately prepared for mediation or don’t have the necessary negotiation skills, you will not be representing your client to the best of your ability.
Failing to adequately prepare can lead to several problems:
- Inadequate understanding of the issues at hand, your client’s goals and priorities, and the strengths and weaknesses of your case.
- A weak negotiating position: Poor preparation can mean you don’t have the knowledge to defend your client’s position or effectively communicate your client’s needs and interests.
- Inefficient process: Without adequate preparation, the mediation process can become inefficient and lengthy, as the mediator may need to spend time filling in gaps in knowledge or helping you to articulate your position.
- Unsatisfactory outcome: Without proper preparation, it is more likely that you won’t achieve an outcome that fully meets your client’s needs and interests, as you may not have fully considered all of the options or made a strong case for your client.
It is really important to properly prepare for a mediation, including understanding the issues at hand, determining your client’s goals and priorities, and gathering any relevant information, evidence or documents. This will help to ensure that the mediation process is efficient and effective and that you can achieve an outcome that meets your client’s needs and interests. You can read more on this topic in my last blog “The importance of pre-mediation preparations” for tips on how to best prepare.
Failing to prepare your client and ineffectively understanding your client’s needs and interests
A lawyer’s failure to effectively prepare their client and understand their client’s needs and interests in mediation can have several negative impacts.
It can cause the client to be poorly informed about the mediation process. As lawyers, we are familiar with the mediation process and know what to expect, however, many clients (particularly individuals) have never participated in a mediation. Many are anxious, defensive and reluctant to actively participate for fear of saying the wrong thing. With all these emotions floating around, many individuals will find it difficult to consider the claim from a different perspective and may have difficulties making decisions.
It can also result in the client’s needs and interests not being effectively represented or addressed in the mediation, leading to an unhappy client. Lawyers are often very good at considering the evidence and substantive issues arising in a claim, and so they should be. However, for most parties, they are interested in achieving a resolution of a claim based upon reasons other than a simple analysis of the law – for example, some need the stress of the litigation removed immediately, and some want to know that there have been changes made to prevent an incident occurring again, some want their day in Court or want to test a particular legal point and some don’t want to set a precedent. Whatever it may be, it’s important that you understand the needs of your client, and prepare them for the mediation.
Ineffectively communicating with your client or other parties during the mediation
If effective communication is not maintained during mediation, it can lead to several problems:
- Misunderstandings: Poor communication can result in misunderstandings between you and your client or between the parties, making it difficult to make any headway.
- Frustration: If the parties are not able to effectively communicate their needs and concerns, it can lead to frustration and a breakdown of the mediation process. Similarly, if you don’t communicate properly with your client, they may become confused, anxious, overly emotional or angry, thwarting the whole process.
- Longer process: Ineffective communication can result in a longer and more drawn-out mediation process. The mediator’s role is to facilitate communications between the parties, if the communications are imprecise or inconsistent, the mediator may have to constantly summarise, clarify and reframe to ensure that the parties are not speaking at cross purposes.
- Unsatisfactory outcome: Poor communication can lead to an outcome that does not fully meet the needs and interests of the parties as important information may not have been properly conveyed or understood. This in turn can lead to tension between the lawyer and their client, or worse still, later attempts to set aside any settlement reached.
Effective communication is crucial in ensuring a successful mediation. While the mediator plays a critical role in facilitating clear and open communication between the parties, if the lawyers are not communicating effectively with their clients and each other, the resolution will be harder to achieve.
Failing to understand the role of the mediator, and trying to unilaterally take control of the process
The role of a mediator is to help facilitate communication and negotiation between disputing parties, with the goal of resolving conflicts or disputes. The mediator does not make decisions or impose solutions, but rather helps the parties reach a mutually agreeable outcome through effective communication and collaboration.
A mediator’s job becomes difficult when the lawyers try to control this process. Common ways a lawyer attempts to take control over the process, and undermine the effectiveness of the mediator, are;
- Dominating the conversations, interrupting other parties or the mediator.
- Refusing to compromise or make concessions.
- Making demands instead of negotiating in good faith.
- Not being open to alternative solutions.
- Attempting to interfere with the mediator’s independence and impartiality.
- Presenting a one-sided argument without considering the other party’s perspective.
- Focusing solely on “winning” rather than finding a mutually acceptable resolution.
Lawyers need to understand that mediation is a collaborative process and that the mediator’s role is to facilitate communication and understanding, not to take sides. The mediator has the unique position of having private discussions with all parties to the dispute and helping them to consider the dispute from multiple perspectives by various techniques that they have been specially trained to use.
Mediators are trained in a proven process, are armed with many different strategies for facilitating effective discussions and have most likely seen pretty much every scenario that you can imagine arising in a mediation. You should rely upon their expertise and guidance – it is not a sign of weakness or lack of knowledge – it is ensuring that you use every resource available to you to properly represent your clients.
By failing to work with the mediator, and personally attempting to take control of the process, lawyers may fail to reap the benefits of the mediation.
Not being flexible or open to creative solutions
If parties in a mediation are not flexible or open to creative solutions, the mediation process can become difficult. As a mediator, it can be challenging to facilitate a resolution if the parties become entrenched in their positions and are unwilling to compromise.
Parties need to be flexible to find a mutually acceptable solution that meets the needs and interests of all parties. Flexibility and creativity are important because it allows the parties to explore different options and reach an agreement that they may not have initially considered. This can help to avoid a rigid and adversarial approach, leading to a more creative and effective resolution of the dispute. Thinking outside the box, and understanding that the needs of a party may not be purely financial can contribute to a successful resolution.
All of the above habits and mistakes can easily be avoided with thorough preparation, an understanding of how your behaviour can affect an outcome and working closely with your mediator.
If you would like to discuss the skills and approach that I bring to a mediation, please contact me at 0412 048 456 or by email at email@example.com.