7/29/2019 From Advocate to Adviser

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From Advocate to adviser: the role of the lawyers in Meditation:

What is mediation?

- Mediation is a confidential, private process in which a neutral third-partyguides disputing parties in a onstructive conversation- essentially an assisted

negotiation.

- Parties are decision makers themselves- makes mediation unique

- MEDIATOR: helps the parties express their positions and proposals

o listens thoroughly to each,

o clarifies issues in dispute,

o searches for solutions that address the needs of all and works toward a

fair,

o

workable settlement to the dispute

Distinguish mediation from arbitration and litigation?

Arbitration and Litigation MediationInvolve a neutral third party- determinesthe final outcomeMore formal and structured processesinvolving the presentation of testimonyand production of documents

Less formal and relatively uncomplicatedprocess involving the disputants indiscussions directly and indirectly withone another and empowering them withthe responsibility for the outcome

Before going to a mediation preceding what does the author recommend theattorneys should discuss with their clients

- what is mediation and how the process is conducted

o may contrast mediation with other processes familiar to the client

o point out that mediation is essentially a problem solving process

o exchange of ideas proposals and the opportunity to seek creative

solutions

- the difference between mediation litigation and unassisted negotiation

- Role of the mediator

o As a manager of the process

- Parties may speak on their behalf 

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o However, the value of the attorneys at the mediations should not be

discounted as they often assist the in moving the process forward

- Inform their clients of the opportunity for private discussion either with themediator or with the attorney and client only

- Discuss opportunities for resolving the dispute

o Greater or lesser flexibility for settlement

o Discuss the cost time and risk of litigation

- Ensure that all documents and other materials essential to completediscussion and resolution of the issues are prepared

Describe the ways in which the attorneys may assist their clients during themediation

- The acknowledge the client’s central role and in particular, do not speak for

the cliewnt; instead, attorneys offer advice, guidance and information

- Do not challenge or cross examine the other party, spar with the otherattorney or in other ways, treat mediation like litigation

- Supportive, cooperative demeanor and demonstrate commitment to themediation process by words and behavior

- Not finding the truth but searching for solutions

- Normative informative

- Balance the risk of accepting or rejecting settlements offers

- Asking for breaks for opportunities to speak privately with the client or for aprivate meeting with the meditation

- Communicate by summarizing discussions or clarifying the matters

- Helps clients stay on the issue

- Encourage clients to find creative solutions

Compare the role of attorneys in mediation as described in this article with that of the role of attorneys in mediation as described in Rule 4 of the IRR of the ADR act of 2004.

Visioning and Coaching Techniques in Mediation