There is considerable discussion these days about how the legal community can help to increase access to justice for Canadian citizens. We know that mediation is a valuable tool to that end but I wonder whether lawyers are recognizing its full potential or, in some cases, shortchanging its benefits.
While this may not be entirely “new”, this post encourages lawyers to amplify the role that they play in choosing and using mediation.
There are increasing opportunities for lawyers to participate in mediation, not in a mediator role but in a counsel or advocacy role, all of which support increased access to justice for their clients. Many courses have been offered on "effective mediation advocacy" but they typically have low turnout. Why is that? Could it be that some lawyers haven't yet appreciated that mediation advocacy requires a different skillset than litigation advocacy?
Until recently it was common in BC for family lawyers to refer their clients to a mediator and not attend the mediation. Often, this was likely a strategic decision in order to save cost. However, mediators say that effective counsel at mediation (of any type) can add significantly to the process. In addition to the obvious role of advising the clients on the law and their legal rights and risks, whether or not the lawyer actually attends the mediation the lawyer can provide the client with coaching to assist the client to achieve his or her goals through mediation. This is a role familiar to some but not all counsel and should be considered separate from the advice and representation role. The intensity of the role will vary depending on the sophistication of the client and their familiarity with the mediation process.
Lawyers need to understand negotiation theory and negotiation styles and assist their client to participate fully and effectively at the mediation. This critical approach is described extremely well in the July 29 2013 New York Law Journal article by Steven M. Rabinowitz, "Coaching Divorce Clients for Mediation Negotiations." While focusing on family mediation this article is equally compelling for all kinds of mediation.
Rabinowtiz notes that while some lawyers resist mediation for various reasons
…a growing number of family lawyers are coming to appreciate that although they frequently operate from the sidelines in divorce mediation-since most, if not all, of the mediation sessions are conducted without counsel at the table-they nevertheless have a vital role to play and can add real value to the mediation process. In addition to the typical counsel lawyers provide divorce clients in mediation-explaining the relevant legal and factual issues, helping them assess settlement options, and reviewing the final terms drafted by the mediator-there is another more challenging, engaging and nuanced role to perform: that of negotiation coach.
He discusses how lawyers can counsel their clients on negotiation, how to handle emotions, how to assess risk and how to acknowledge the other parties’ perspectives. Knowing his audience (lawyers) he spends quite a bit of time dealing with the need to identify and explore “interests”.
He continues provocatively:
This is not to say that lawyers should coach their clients to adopt some sort of let's-all-hold-hands-and-sing-Kumbaya approach. That is a recipe for disaster. Rather, as negotiation theory teaches-and as both practical experience and empirical evidence confirm-the best outcomes in negotiation and, hence, mediation, come when the parties find a balance between asserting their own interests and appreciating the interests of the person across the table.
When lawyers explore interests, they are discovering, and, in turn, helping their clients discover not just what they want, but why they want it. This is critical for three reasons. First, when clients thoroughly understand their needs and motivations, they are better able to prioritize them. This, of course, is a necessary step when preparing clients for the bargaining that will invariably take place in mediation. Second, armed with this understanding, clients will acquire greater confidence and, hence, will be much more comfortable expressing their interests in the mediation; that is, they will naturally be more assertive. Third, and most importantly, when clients focus on their interests, they are less likely to rigidly stake out positions, and will be more open to finding alternatives that satisfy their needs.
Before the commercial, personal injury and insurance litigators stop reading, let me take a moment to point out that research has confirmed that in those types of mediation money is not the only interest/issue. Money or financial security can be an inportant interest but it is very rarely the only issue to be resolved. John Lande acknowledges that in these types of cases counsel often feel pressure to routinize, commoditize and reduce cost in order to “dispose” of cases more efficiently. However, in his article “Lessons from Mediators’ Stories” he relates how, even in this kind of environment, “mediators and lawyers sometimes break out of their routines to provide extraordinary service and gain deep professional fulfillment” by “paying attention to important clients interests and resisting pressures to treat cases as standardized processes.”
One of the insights that he draws from these stories is that “money isn’t everything”. Mediation can meet a variety of party needs (an opportunity to be heard, a chance to provide an apology, a time to express hurt and disappointment, a place to uphold reputation or “face”, a time to seek a renewal of an important business or personal relationship or even reconciliation etc.). While a court is usually limited only to financial awards, not everything can be reduced to financial terms.
It is my observation that it is almost never all about the money. Even in commercial or insurance mediation the people around the table invariably have interests that can contribute to or provide barriers to resolution. For example, an adjuster's interests can include reputation and “severities” (average payouts) and, once identified, these issues can be explored and dealt with creatively as part of the mediation preparation and coaching process.
Cinnie Noble, a recognized expert in both conflict resolution and coaching, has written persuasively on the topic of mediation coaching here. She highlights how coaching can help “the person to learn how to more effectively participate in constructive conflict conversations and gain insights and skills that extend beyond the specific dispute.” Cinnie’s blog is filled with helpful related insights.
Greater access to justice involves more options for clients. Mediation coaching is one way that the legal community can expand options for clients as well as their own participation in those options. A win/win.