What does a lawyer do in a mediation?

Interviewer: In a dispute one often goes to one's lawyer. To what extent should negotiation be the first line of defence in a dispute?

Well if you go to a lawyer, lawyers trained to protect a client's interest. So lawyers natural reaction is to assert what their client's rights are. And as a lawyer, I would always think that was the right thing to do first. But personally, I made it my practise to always pick up the phone to the partner on the other side of the case very early on. Just to say, hello, I'm here. I'm pleased to talk to you about the case at anytime. So opening the door, in a way, to the possibility of negotiation. And beyond that, it's also the lawyer's duty to make sure that if the case can be resolved through negotiation rather than litigation, then that's what they should do. And, it is surprising how few cases settle early, and how many cases settle shortly before the door of the court.

Interviewer: What would you put that down to?

Well, there's no doubt that in many cases, the parties have got to go through the process of understanding what the other parties case is, what their rights are, what the evidence is. And so, the litigation process fulfils that function or moves the parties into a position where they have the knowledge and understanding to know how to settle that case. There's a tendency, however, to take cases through, I think, when there ought to be an earlier attempt to settle. Definitely. The fact that in most commercial disputes these days with a contract, there's going to be a disputes clause often with a mediation provision, opens the door to an early negotiation. And to the surprise of many parties, those negotiations those mediations, do get things resolved and parties interests protected.

Interviewer: So there's a perception and I think I've experienced that lawyers tend to file proceedings first or litigate first and then only negotiate when they're on the steps of the courthouse, and yet statistically, the majority of cases are settled. So what's happening there?

Yeah, I think it's a real shame. And when I was a baby lawyer, I was always taught to sit back and look at what a client's problem is from all sides. And that often meant actually talking very early to the other side's lawyer, to get a perspective of where they're coming from. A sad consequence of the CPR is that we are front-loading our preparation of our cases and we are putting together letters before action very, very early on. So a client comes to you with a problem, and as a lawyer what you're trained to do is think about how does that fit with a particular clause in the contract that I can allege has been breached or what negligence action can I formulate out of what my clients told me has gone wrong in a project or in a relationship. Now, the difficulty with that is then your next task is to formulate the claim. And what you do by doing that, you polarise the position, you get even more of a viewpoint in the extremis as opposed to looking at the ways in which you might be able to find compromise. And so by the time you've issued your pleadings, you're then pleading an absolute extreme. And your client may have come to you thinking he's feeling a little bit aggrieved, but by the time you've actually issued your pleadings he's been fortified in his thoughts about his rights and his claim, and he's even more angry and even more cross. Now, the reality is, and we all know this is that the evidence doesn't always come up to scratch, the documents aren't quite what your client told you they might be, the way you read a document might be read in a different way perhaps when a judge looks at it, the witnesses might not quite be as persuasive as you think they will be and the experts are often a little bit sitting on the fence sometimes. And so when you get to court or before court and you ask your lawyer to give you a merit analysis, he says, it's not quite strong as he was telling it was right at the very beginning and then undermined your confidence and you think, "Well, actually what is it going to cost? Or maybe I'll think about possibly settling. Now, at that stage of course, the costs get in the way of potential settlements. If that conversation had happened at the beginning, and the CPR does encourage that because it does put in place pauses for mediation. If those conversations happen earlier on in the lifecycle of the dispute, you're much more willing to listen to the alternative arguments. And so I think that that's why we need to be encouraging people to negotiate first and litigate afterwards. Not every case will be able to be negotiated into a settlement, I get that, and you will need litigation in due course, but most cases benefit from a negotiation at the outset, if only need to recognise what the other side are going to argue to put your case in a better way, but at least listen because you might be persuaded that there's a better course of action than litigation and it might be a negotiation towards a settlement early.

Interviewer: So it sounds like from what you're saying the CPR in civil procedure rules are on the one hand sort of forcing lawyers at least to nail their client's position down very early and at the same time trying to encourage negotiation or mediation, that sounds like a bit of a conflict.

Yes, is it is in a way, isn't it? Because you know, were I to count the mediations that I do, how many mediations are pre-proceedings? They're actually quite a lot and they're very successful, because they are at a time when you're not so sure of your evidence and you're recognising the risk of launching litigation. And so the CPR is good for that because it is asking you to really prepare before you launch, But once you've launched, you get entrenched. You do have these stages where the judges will ask you at certain stages, have you thought about mediation? And indeed there are of course consequences if you don't consider mediation, but I do have a worry that once you've invested the time with lawyers and you've issued what are often quite expensive letters before action or pleadings, that the reality is you're much less likely to want to listen to the other side's point of view and that can't be a good idea.

Interviewer: Can I just pick up the point about the letters before action and how they need to be drafted and as a result, what it is that can polarise things so early on.

Yeah, so let's for action are prerequisites before you're allowed to plead and you'll be penalised if you don't put them together. So the lawyers are actually putting your case at its best to persuade the other side to settle, they believe, but actually what they're doing is they're very much looking at it from one's perspective. They're not going to put the compromised positions, they're not going to put the other side's viewpoint. They haven't often spoken to the other side, it seems quite remarkable to say that, but they haven't picked up the phone to the other side's lawyers and just said, let's talk without prejudice, let's just have a conversation around where's your client coming from. It would be helpful to do that you'd have thought because it might actually put in context what your client has said about their side of their story. But they're very expensive, they take a long time to put together because you have to really research your client's case. And the reality is once you read, it's natural. You'll read somebody else's view of a story and you say, "How dare you say that? That's not the way it is. I'm actually really aggrieved with the way you've portrayed my client's behaviour." Then the client reads it and even he's even more passionately upset. And you're pushing people apart from having conversations around respect and compromise and recognising that there are always two sides to one story and the hurt and the passion and the emotion that underlie and underpin every dispute, commercial or otherwise aren't recognised in letters, which are very much binary and 2D.

Interviewer: What ethical obligations does a lawyer have in mediation?

So we talked about the fundamental ethical obligation previously, which was to do your best for your client, and within the mediation process, counter-intuitive as it may seem, this often means just doing very little. And it can mean a lot of sitting back and listening. In adversarial proceedings, in court proceedings, the lawyer is very much front and centre, particularly a barrister or a client often might not even say anything in court proceedings. That role is reversed completely in a mediation, and the obligation of the lawyer there is really to let the client own the process and let the client really participate in the process. That is not just an ethical obligation, but if you want a satisfied client, at the end of the day. A client isn't going to feel satisfied if they are pushed into an agreement, a situation. They're going to be satisfied if they feel that you as their lawyer have been there for them, you've supported them. That can mean making sure they have enough coffee and chocolate. It can mean sometimes answering, if the client gets too upset, it can mean saying, "Look, I think it might be a good idea to have a private session with the mediator now." And it can sometimes mean going, "Look, I really think this is going to be a good deal. I cannot promise you that you're going to do any better in court." So it really spans the spectrum from being completely quiet and doing nothing, to nudging and coaching and supporting and encouraging. And if the lawyer has played that role well, then the client will be happy, as well. And I think sometimes there's a little piece of education that has to be done there. And it's a difficult one because your role is to advise your client what their rights are and what they're entitled to, but that might not always be the same thing as what they really want. I was involved in a situation where an employee had been let go and was suing for a constructive dismissal, and her lawyer, he was very good and very supportive of the mediation process, but he was continuing to advise, he said, "Look, you're entitled to be reinstated. Your remedy here is reinstatement. You're entitled to it. This is an open-and-shut case." But it wasn't an open-and-shut case because we couldn't reach agreement. And the difficulty was that, and this was a shuttle mediation, 'cause the parties weren't able to be together. But the other side, the employer, didn't want this employee back, for various reasons. So reinstatement and not wanting the employee back wasn't going to end in a consensual agreement. And at one stage, the lawyer went off to take a phone call, and the employee said... Look, and she was of a generation, maybe, where she still was afraid to talk back to a lawyer, 'cause the lawyer was the person who knows everything. And she said, "Look, I'm kind of afraid to tell my lawyer this, but I really don't ever want to go back and work there. I can't see myself ever working there again, but I know that what I should be looking for is this." So anyway, we had a conversation. We explored it a bit and explored her concerns about sharing this with her lawyer. So she did share it with her lawyer. Her lawyer said, "Okay, well that's fine. Okay, so let's just look for a settlement then. We'll look for a financial settlement or a redundancy package." And of course that worked, so the other side were happy, everybody agreed, and everyone was delighted. And I think the lawyer had a moment of enlightenment where he sort of said, "Gosh, it didn't actually occur to me to ask her what she really wanted. I was just applying my knowledge of the law." So that's maybe the piece that can be missing sometimes, is setting aside the legal advice for a minute and just saying to the client, "What is it you really want?" You might not always be able to get it, but it's good for the lawyer to know what their client really wants.

Interviewer: If a lawyer insists then or making an opening statement or that's been the plan for the day, how do you manage that?

If the lawyers have decided to make a statement and that's the plan for the day, then I think I have to hear what the statement is. If the lawyers insist on making an opening statement, then probably, an opening statement has to happen because the client will no doubt agree with the lawyer, but I would try and understand what is being said. And you would try reality testing with the lawyer and asking the lawyer, how does he or she think this opening statement will help the resolution of the dispute? Go through the statement, offering advice and support, don't under any circumstance let an opening statement be made without hearing what is intended to be made. First do no harm is a principle which applies not only in medicine, it applies in litigation. And it applies in the mediation. You must, for heaven sake, Find out what's intended to be said. Something very hurtful, very damaging could be said. If something hurtful has been said, you not only put the process of mediation back, you've done something which shouldn't be tolerated at a mediation. Vulnerable people have heard something which makes things worse for them. That's really a very poor result. So you must find out what is to be said, and you must quietly try and help in framing the opening statement if that's necessary. Don't, if an opening statement which contains hurtful things, for example, this is at the extreme of intended opening statements. Then I don't think you should allow that opening statement. I think that's very damaging for the process and you are there to guide the process, to hold the space, to hold the space for people, that's most important.

Interviewer: How can a lawyer help manage impasse?

In my experience, a lawyer is really the best person actually to help manage an impasse. It is one of the more difficult tasks for that lawyer. So a lawyer can be very influential if you've got stuck because the client, because the disputant is tired or just getting fed up with the process or needs food, or maybe just cannot see the wood for the trees anymore 'cause things got so complicated. So the best person there actually to sort out those issues with the client is the lawyer, more so than maybe a mediator 'cause the lawyer can take the client away to give them something to eat and can give them maybe the required pep talks or clarification. It is also the more difficult road, because what often needs to happen in order for an impasse to be broken or to be resolved is some really incisive reality checking and questioning. So often what's going to resolve the impasse is by the client realising that actually my BATNA, my WATNA, my best and worst alternatives to this aren't really so good and I don't really like them. And also they might not even be that achievable, so the lawyer might have to really reality check and say, look, you know, if we walk away now having reached this point, you know, what's going to happen? Here's going to be the implications, if we do need to go to court, these are the aspects I think are going to potentially trip us up in the future, so the lawyer can help in an impasse situation by on the one hand, making the client more comfortable and ensuring they have all the information, but also really testing the client's boundaries and the reasons for them being stuck in that point. So it's a very delicate role to play, but a very important one.

Interviewer: What if the mediation hasn't ended in agreement? What can a lawyer do to support his clients then?

Well, we were talking earlier about mediation being a change of mindset from adversarial litigation. That the parties should be helped to see that this is a dispute resolution process, as opposed to a blaming process. A looking forward, rather than a looking back. In my experience, if you can successfully change the mindset at mediation, then that process doesn't switch off when the mediation is finished. It continues on. So lawyers shouldn't give up. They should continue to seek, to strive to settle the dispute between the parties even after the day of mediation is over, because the mindset has changed. And the process is unfolding now in the minds of people. So never give up is the first thing I would say. Just because it has failed on one particular day, never give up. Keep trying and trust in the fact that sometimes it just takes a little longer for the agreement to unfold, but the process has been continuing to work. You have started something and that may continue on and ultimately deliver the agreement that suits the parties. So I would never panic about a mediation failing on the day, and I would keep trying to mediate after the mediation has failed, because often it can be successful after some lapse of time.