3. Lawyers with mediation orientation
Lawyers are critical for success in mediation. The additional skills that are required for lawyers to represent clients in mediation include:
Mediation advocacy: The ability to pivot from the traditional adversarial approach to a more collaborative, problem-solving approach, the skills to write a good mediation brief and a recognition that mediation is the opportunity to make a ‘deal’ and not to ‘prove a point’ are essential.
A mindset to listen: Understand what the other side’s needs are, what is motivating their position and an ability to present their client’s needs in a manner that is not aggressive but persuasive.
Prepare for mediation: Prepare thoroughly with the facts and the law. The other side needs to know that the lawyer for their opponent is reasonable and yet, if need be, can put up a strong fight in court.
Prepare for negotiation: Lawyers are the negotiation coaches for their clients, and they need to be familiar with both distributive and interest-based negotiation.
Prepare the parties: Parties need to understand mediation and be able to distinguish their role and their lawyer’s role in mediation as compared to litigation/arbitration. This allows them to feel safe and trust the process.
Prepare the mediator: Lawyers prepare the mediator to handle the complexities of the facts, the law and the people issues involved in the dispute. The mediator is coming into the dispute mid-stream and lawyers need to ensure that the mediator is well briefed to conduct the process efficiently and successfully.
Guard the client’s interests: Protect the legal, professional and personal interests of the client always.
Borrow the mediator’s power: The unrealistic expectations of clients must be softened. It is a good strategy to use the mediator to deliver to the client the bad news on the weaknesses and hard realities of the case in court.
Flexible and creative: The vast and varied experience of the lawyer can be the source for flexible and creative ideas for a solution.
Draft a mediated settlement agreement: Normally in mediation, it is the lawyers who draft the settlement agreement. Mediated settlement agreements must be clear, comprehensive, legally binding and enforceable. When multiple jurisdictions are involved, the lawyer needs to be familiar with the laws of all the concerned jurisdictions. A well-drafted mediated settlement agreement has minimal scope for future disputes on the issues involved.
Source: Barandbench
