The Judiciary of Trinidad and Tobago recently initiated a Court-Annexed Mediation Pilot Project, managed by the Dispute Resolution Centre. It involved 60 non-family civil disputes. The objectives of the Pilot Project included learning whether mediation of such disputes is an efficient, cost-effective adjunct to the judicial process and what types of disputes are most likely to be resolved by mediation.
For many of the attorneys, participating in the Pilot Project was their first direct experience with mediation. They quickly became aware that the mediation process required a modified skill set. To assist their clients and advance the goals of mediation, it is often useful for attorneys to shift gears, adopt different strategies and emphasize skills which may lean more heavily towards being an advisor than an advocate.
How then, can attorneys, trained and experienced in trial advocacy, tailor their skills for mediation? Let us first distinguish between mediation and litigation or arbitration.
Mediation vs. Litigation and Arbitration
Mediation is a confidential, private process in which a neutral third-party guides disputing parties in a constructive conversation—essentially an assisted negotiation. The mediator helps the parties express their positions and proposals, listens thoughtfully to each, clarifies issues in dispute, searches for solutions that address the needs of all and works toward a fair, workable settlement to the dispute. The parties themselves are the decision-makers. This attribute, known among professional mediators as self-determination, is what makes mediation unique.
Arbitration and litigation also involve a neutral third-party, but can be distinguished from mediation in several respects. They are more formal and structured processes involving the presentation of testimony and production of documents. Generally, court proceedings are conducted in public and strictly according to sets of rules and procedures that can be enforced by the judge. The third-party neutral is also responsible for determining the final outcome of the dispute.
Mediation, by contrast, is a less formal and relatively uncomplicated process involving the disputants in discussions directly and indirectly with one another and empowering them with the responsibility for the outcome.
Given the more central role of disputants, what then, are the tasks and responsibilities of attorneys in mediation? To answer this question, it is necessary to examine the role of attorneys in two phases—pre-mediation and during mediation.
As with litigation and arbitration, adequate preparation is vital to a successful mediation, and attorneys can prepare their clients by discussing the following:
What is mediation and how the process is conducted. They may contrast mediation with other processes familiar to the client. They should point out that mediation is essentially a problem-solving process that has as its goals a thorough discussion of all issues in dispute, the exchange of information, ideas and proposals and the opportunity to seek creative solutions to the dispute.
The differences between mediation, litigation or unassisted negotiations, and attorneys may explore whether participating in mediation is likely to be a positive and fruitful exercise.
The role of the mediator, as a manager of the process, a facilitator of negotiations and a guide in the effort to secure a full settlement. In particular, attorneys emphasize that, in mediation, clients usually speak on their own behalf and are directly involved in making decisions with respect to the dispute. However, the value of attorneys at mediations should not be discounted as they often assist in moving the process forward.
Attorneys should also inform their clients of the opportunity for private discussions either with the mediator or with the attorney and client only.
With respect to the issues in dispute, attorneys and clients should discuss opportunities for resolving the dispute, the range of possible outcomes, the issues on which the client may have greater or lesser flexibility for settlement and the minimum terms and conditions the client will accept. Attorneys should also have a frank discussion of the alternative to settlement and, in particular, the cost, time and risks of litigation.
As they would in litigation or arbitration, attorneys must ensure that all documents and other materials essential to a complete discussion and resolution of the issues are prepared, reviewed and available at (or sometimes exchanged prior to) mediation. Resolving the dispute will depend in significant measure on the completeness of information available.
The greatest shift in the attorney’s role and responsibilities arises once mediation begins. During mediation, attorneys typically assist their clients in some of the following ways:
- They acknowledge the client’s central role and, in particular, do not speak for the client; instead, attorneys offer advice, guidance and information.
- They do not challenge or cross-examine the other party, spar with the other attorney or, in other ways, treat mediation like litigation.
- Attorneys maintain a supportive, cooperative demeanor and demonstrate commitment to the mediation process by words and behavior. They do not treat mediation as an adversarial process or as a means for finding the truth; instead, they acknowledge the importance of searching for solutions. Attorneys assist in defining the issues to be resolved.
- They provide normative information, usually in private, about the benefits and risks of specific proposals.
- They act as an agent of reality, helping the client to balance the risks of accepting or rejecting settlement offers and the potential complications of presenting the case to a third party for decision as well as the time, stress and expense of a trial.
- Attorneys help manage the process by asking for breaks, for opportunities to speak privately with the client or for a private meeting with the mediator.
- They assist clients to communicate by summarizing discussions or clarifying matters that are confusing or where miscommunication is preventing constructive problem-solving, or worse, leading to increased conflict.
- They help clients stay focused on the issues at hand, the information presented and options for settlement as well as remain calm as they deal with frustration over the pace of progress or feeling overwhelmed by direct confrontation with the other party.
- Attorneys encourage clients to find creative solutions that will resolve the dispute.
- They draft documents as required.
Those attorneys who view mediation genuinely as an opportunity for their clients to participate actively in discussions about, and settlement of, their own disputes are valued allies in the process.
This view is expressed repeatedly in comments from parties and mediators in the Court-Annexed Mediation Pilot Project. In discussing the role of the attorneys, one mediator notes:
I used the attorneys a lot. I spoke to them separately,...I didn’t give an opinion, but did a lot of talking about risk...Generally I worked with the attorneys and then sometimes left them to sell an idea to their clients, or sometimes sat in with them.
Another mediator expresses appreciation for the attorneys in helping to resolve a very contentious mediation, in this way:
...the attorneys from both sides were very helpful in bringing clarity regarding their legal positions. It was very fruitful and they were able to settle everything.
At times, the shift from advocacy to advice collaboration can be awkward and unsettling for many attorneys. Recognizing that their clients benefit from this collaborative role, and that mediators appreciate their constructive participation, attorneys should utilize mediation as they would any other dispute resolution process—wisely and with due regard for their particular role in making the most of its unique attributes. In managing the transition to mediation advocacy, attorneys may benefit from additional educational programs and seminars where they can learn to use their knowledge, experience and skills in support of their clients’ participation in this helpful and constructive process.
The transition from trial advocacy to mediation advocacy may be challenging, but the rewards are worth the investment of time and energy.