Mediation is a flexible dispute resolution process in which an independent and neutral third party (the mediator) facilitates discussions between disputants with a view to the parties themselves choosing how to settle their dispute.
Parties using mediation sometimes ask whether it is necessary to involve a lawyer – the short answer is no. But it is often advisable and helpful. Most mediated commercial disputes benefit from the input of a lawyer specifically trained in mediation skills, whether an in-house or private practice lawyer.
The role of the lawyer is important both before, during and after the mediation day and they can make a significant contribution towards the success of the mediation by being an important ally to the mediator and adding value in such areas as:
o Carrying out many pre-mediation tasks to prepare the party and ensure that the mediator’s job is made easier.
o Ensuring that the party adopts the right mindset to get the most out of the mediation. This may involve coaching the party on how the process works and what to expect, e.g., inviting the party to think not only about its own interests but about the other party’s interests too.
o Helping to choose the right mediation team. This is critical. The mediator will want to hear principally from the parties rather than the lawyers and it is therefore key for the right client representatives to be on the team and for the appropriate individual to be the main spokesperson. A good mediation lawyer will discuss this with opposing counsel with a view to the teams on each side being balanced.
o Preparation, the importance of which cannot be over-stated. This will usually involve such aspects as preparing a pre-mediation submission, communications with the mediator about the process and the practical arrangements for the mediation day, working with the party on its negotiation strategy, and ensuring that the party is clear about its options should the case not settle on the mediation day.
o Conveying the right information to the mediator. Although a good mediator will be skilled in encouraging the parties to disclose the information necessary to bring the parties to a resolution, the mediator will not be familiar with the case to nearly the same extent as the lawyer. The lawyer has the advantage of knowing the case intimately and is therefore able to ensure that the party conveys all necessary information to the mediator at the right time during the mediation.
o Carrying out tasks assigned by the mediator. The lawyer will help the party carry out tasks assigned by the mediator, e.g., the mediator might ask a party to think about how much a litigation or arbitration would cost if the case cannot be settled on the mediation day.
o Generating possible settlement options. Unless the parties have asked the mediator to play an evaluative role, it is not part of the mediator’s remit to suggest how the case might be settled. During the exploration phase of the mediation, the lawyer can therefore have a real impact on generating creative options for settlement.
o Reality-testing settlement options. Whilst the mediator will probably reality-test settlement options, e.g., by asking a party to think about what would happen if a certain option were to be chosen, the lawyer can do so using a different dynamic and being more directive with the party, which may assist the ultimate resolution of the case.
o Preparing a settlement agreement. One of the most important tasks for the lawyer is drawing up a settlement agreement at the conclusion of the mediation. In many countries, the mediator’s role is restricted to checking that the parties have not forgotten to include agreed-upon issues in their settlement agreement and the mediator will have no input into whether the agreement is legally watertight. This is therefore one of the main areas where a lawyer’s input is highly advisable.
o Complying with and, if necessary, enforcing a settlement agreement. The lawyer can also smooth the path to prompt and full compliance with the settlement and, if need be, enforcement. The Singapore Convention on Mediation, adopted on 20 December 2018 and opened for signature on 7 August 2019, is already simplifying enforcement of mediated settlement agreement between countries which have ratified it. However, there is still a long way to go, since in non-signatory countries (of which there are many, including the UK and France) mediated settlement agreements still have to be enforced through the courts much like contracts.
One more area where the lawyer can bring to bear crucial knowledge and experience is in relation to hybrid processes, i.e., where more than one process is used to resolve a dispute. For instance, an arbitration has been commenced and the parties pause the arbitration part-way through to try to resolve the dispute through mediation in order to avoid incurring the cost of an arbitration hearing and having their case determined by a third party rather than deciding it for themselves. In this scenario, the lawyer can advise on whether mediation is appropriate, at what stage it may be used with the best chance of success, and how it interacts with other processes. This specialist knowledge and experience of a range of dispute resolution processes and their possible combination can contribute to the prompt and cost-effective resolution of a dispute.