The need to understand the mediation process impacts anyone who provides professional legal advice - solicitors (contentious and non-contentious), barristers and in-house counsel. No matter what the role an appropriate level of knowledge and experience is necessary if clients are to be served well. Are lawyers getting there?

Need to know

When mediation first started taking root in the UK in the early 1990s it was against a background of ignorance, scepticism and fee concerns within the wider legal profession. The ignorance and scepticism was partly tackled by education and awareness-raising, though concern about lost fees was a more sensitive subject to address. As one computer consultant and expert witness put it in blunt terms to me, ‘which lawyer is going to choose a process that is over in a day rather than in six months?’ ‘Enlightened’ lawyers however from the start saw that any profession must live or die by its ability to offer genuine service to clients, and this alongside competitive service offers from other professionals, would drive the legal market towards eventual adoption of mediation.

This process of uptake of a new professional tool would have been slower had it not been for two other key factors. First major corporate clients were quick to identify with the mission to make litigation more cost-effective, and willing to tell their outside advisers that they expected them to embrace this approach. Apart from taking up membership of CEDR readily, general counsel of a number of blue chip companies talked up the process in case reviews with external advisers, and some even began to insist in beauty parades that they would not consider employing law firms on their panel which did not show knowledge of the process and ability to work with it.

As one writer put it,
“Clients no longer unquestioningly place their trust and welfare totally in the hands of professionals. They are more informed and discerning than previous generations. Clients want their lawyers to provide realistic and creative options for dealing with disputes. They would prefer options that create opportunities as well as minimise the risk of involvement in further disputes.”
Greg Rooney, Mediation and the rise of relationship contracting, 2003*

Outside the major corporates however, take-up amongst the wider profession and at the Bar was slow until the second key factor came into play, senior judicial support. This began with practice directions which highlighted ADR as an expected part of litigators’ client discussions, then moved first to more robust directions in the Commercial Court, and finally to formal integration in litigation procedure with the Civil Procedure Rules in 1999 and subsequent case law, particularly around cost sanctions and mediation refusal. This judicial endorsement and intervention has been a key element in progress to a position where the legal profession at large takes ADR seriously. In the last five years it has also become evident that the Bar is catching up with the solicitors’ side of the profession in terms of active engagement with the field.

The current status quo

So far so good. However, taking the process seriously and (a) doing something practical about it, and (b) handling it with effective professional competence, are different stages and raise different questions. Research work on court-annexed mediation, together with CEDR’s own experience, suggests that we are still some way away from the process being as ‘natural’ as other professional procedures. Others obviously share this view – thus the DCA and Court Service’s recent action of holding a Mediation Awareness Week (actually two weeks) at courts around the country was aimed at lawyers as well as clients.

The rationale for greater take up of mediation, and for also considering better lawyer competence in the process, is still strong. Research by CEDR (Centre for Effective Dispute Resolution) in the second half of 2005 has shown that there appear to be just short of 3,ooo civil and commercial mediations a year now taking place. UK mediators (sample size 417) claim around 73 per cent of their cases settled on the day, with nearly another 20 per cent settling shortly afterwards (an aggregate settlement rate of 93 per cent). The most likely reason for settlement the mediators, perhaps unsurprisingly, gave were cost and time savings. Yet when asked as to the reasons behind the non-settlement of cases, many mediators blamed the approach of legal representatives and unrealistic expectations of clients in almost equal proportion (both being cited by over 40 per cent of all respondents).

There was also a degree of parity between lawyers and mediators in their overall assessments of lawyer performance:

• 58 per cent of lawyers (and 59 per cent of clients) were rated as having performed well or very well (with 34 per cent of lawyers and 31 per cent clients rated in the highest category)
• 23 per cent of lawyers (and 24 per cent of clients) were rated as having performed adequately
• 19 per cent of lawyers (and 17 per cent of clients) were rated as performing less than adequately (with 8 per cent of lawyers and 5 per cent of clients rated as having been very poor).

Many law firms would no doubt be disappointed if only 34 per cent of their personnel performed very well in a professional situation, and would be even more concerned by having 19 per cent performing less than adequately. They might also consider whether, given their greater experience and training, they ought not to be performing to a consistently higher standard than their clients are.

These survey results might therefore suggest that there is a need for further lawyer training in the skills of representing their clients in mediations. Apart from lack of experience and know-how, other factors may perhaps inhibit best practice in mediation.

Making love not war?

“In our culture it is much easier to engage in adversarial conduct than to sit down with your opponent and talk.”…

“Up until now the legal profession has, I believe, made only limited use of the process of mediation. There is a tendency to simply transfer the legal adversarial litigation culture and positional negotiating behaviour into the setting of the mediation room.”
Greg Rooney, Mediation and the rise of relationship contracting, 2003*

Swapping adversarialism for mediation is not always the easiest personal transition to make – particularly for lawyers that were attracted to litigation because ‘proving their point’ and ‘the fight for justice (or victory)’ was what they particularly enjoy.

Fortunately the practice of mediation does not require that barristers exchange their wigs and gowns (or solicitors their suits) completely for kaftans. As anyone experienced in mediation knows, the mediation setting can be an arena for very tough and detailed advocacy and negotiations. In some ways it requires even more skilful advocacy, not just selling a case, but balancing the promotion of the client’s interests and objectives, reality-testing and challenging the other side’s case, alongside a good sense of how to be seen as constructive in terms of helping the other party and one’s own client come to terms with what the boundaries of reasonable settlement are.

Realistically mediation is often not about striving for a mythical 'win-win' outcome but instead better understanding what the other side wants or needs and how to plan and manage your responses accordingly. A ‘lose-lose’ outcome in mediated litigation can often be a more realistic outcome than ‘win-win’. However both parties still want to know that the negotiated choice they are making is in fact the most realistic and acceptable choice compared to the alternative of risking trial or judgement – thus the tension and toughness within mediated negotiations. For how difficult and delicate the balance can be in terms of options, one only has to take as case studies (mentioned here without detailed comment) the recent BCCI v Bank of England, and Equitable Life cases as critical examples of the delicacy of the balance between litigation and negotiation tactics.

Learning How to Become a Mediation Specialist

The skills of a mediation advocate, at a basic level – structure of the process, key phases, etc. - are learned relatively quickly. As someone who has both taught and practised negotiation and mediation over many years, I can testify however to the recognition that one can always learn how to do better.

We should as a profession, mediators and lawyers, celebrate the fact that we are moving into a further phase of practice which goes beyond basic awareness, into a recognition of the need for further training in more sophisticated skills and effectiveness within the process. At CEDR we train lawyers through participative exercises, case studies and role play to maximise learning, become equipped with the skills needed in mediation advocacy, maximise the settlement benefits for clients at a mediation, and be fully appraised of the requirements now demanded by current civil justice practice. Of course much can always be gleaned from greater experience, but experience on its own can often lead to habit rather than to insightful learning and sustained effectiveness across different types of case.

Lawyers are therefore rapidly adjusting to the fact of two tracks developing in this field, those who are still getting geared up for the ‘learner driver’ test, and those who have already noticed that ‘advanced driving’ is the new badge of excellence for the serious players.

*Greg Rooney, Mediation and the rise of relationship contracting, 2003
Published in the Law Society of South Australia "Bulletin" Vol. 24 No 7.

www.cedr.co.uk