There is much debate about the legal professions struggle with how to engage with the mediation product.Its first reaction, like all apex predators, is to try and colonise the new kid on the block and make it into an image of itself with an adversarial culture approach dominating the legalised mediation process. Litigation Lite.I'm not sure if the problem is with the adversarial mindset but more the law's centuries-old de-humanised approach to dispute resolution Lawyers are paid mercenaries to do the fighting for the parties while keeping the humans isolated on the sidelines.
That's why there is an extreme reluctance to have any meaningful joint sessions.The point the legal profession has failed to grasp is that litigation has failed as a viable commercial product because the world has changed - the relationship between things, the interconnections and the commercial value of disruption are more valued than the things themselves. Especially post Covid we have gone back to the village and the importance of human connection.
It's time to bring the human connection back into dispute resolution. Let the mediator handle the human connection bit and for the lawyers, just stand back and handle of the business/commercial/legal aspects of the dispute and the outcome. Let the outcome emerge out of the human interaction. A bit scary for the lawyers but the mediator can guide you through it. Trust the mediator.
The following is the mathematical reason why the joint session has so much more to offer the parties as a way of resolving disputes.THE MATHS:1 mediator, 2 parties and 2 lawyers-SCHUTTLE3-nodes - 4 connections there and back between the parties and 4 pathways to and from the mediator - it slightly improves if the mediator meets the lawyers together - then 6 pathways in total.JOINT SESSION5 nodes- 20 connections there and back, 48 pathways to and from the mediator and 120 pathways in total including through the mediatorOf course, the restriction on communicating with the other lawyer's client is waived in a mediation. It's quite a dynamic human interaction - this 450 word mediate.com paper is my approach to as a mediator to this dynamic see: https://www.mediate.com/the-art-of-the-simple-in-mediation/
Viva the joint mediation session!
Thank you for your post. As a passionate supporter of mediation as an effective means of resolving many types of disputes, I am too often dumbfounded at the lack of use of mediation by lawyers.
Interestingly, there's a very big elephant in the room that I rarely see discussed or acknowledged.
Before we chat elephants, it's worth noting I am one of the few professional mediators without a law degree.
I was a career banker spanning numerous roles – front-end banking, head office and 'bad book' risk management roles – all geared around commercial, regional and agricultural lending.
My introduction to mediation was through the Farm Debt Mediation Act, a scheme that required banks to mediate prior to any recovery action against clients in the NSW primary producer space. As a bank representative (not as mediator) I was able to experience first-hand the strength of mediation being able to sit with a client in a supported, confidential space that allowed both sides of the issue to work through our situation.
The clients were mostly supported on the day by a rural financial counsellor, who proved invaluable to helping the client work through their options – both prior to mediation and during. We (the bank) would often have a lawyer present, often assisting the with documenting agreements (although I vividly recall one mediator writing our heads of agreement in his lovely, 'old-school' handwriting). The lawyer's role though was primarily to assist me in any technicalities rather than be an active participant, and this worked well.
I have since left the bank after 20 or years and am now a mediator. I often reflect the many mediators we used over the years; some good, some not so good, all providing valuable insights to learn from.
What were some of my most valuable lessons? One learning is in regard to the method used – predominantly joint sessions vs predominantly shuttle. Shuttle mediations were often the preferred mode for lawyers and mediators that didn't seem comfortable being in a joint session.
Achieving an agreement on the day is one thing. Achieving an agreement that both sides understood, were invested in and committed to see through to completion, is another. Looking back, it was the mediations that invested the most time towards joint-sessions that resulted in a higher number of agreements being achieved and delivered on. On the other hand, agreements that were agreed using mostly a shuttle approach were often the agreements that were not delivered on by a client and/or resulted in further complaints, issues, further mediations and sometimes litigation.
Back to that elephant .... nearly.
As an 'outsider looking in' (non-lawyer) I see two recurring themes impacting the lack of mediations as a means of resolving many types of disputes. I have worked closely with a lot of many well respected, hardworking, industry leading lawyers that are awesome at what they do. They win. Lawyers love to win. Lawyers go into battle for their client. They love debating and having an argument.
That said, I often observe a client's lawyer 'taking over the steering wheel' of their car. 'Move over... I've got this!' I have observed first hand lawyers that struggle with the concept of sitting in the passenger seat and letting their client drive. It's an overwhelming proposition for some and I'm sure it brings out anxiety in the best of them.
The history of collaborative law and how/why it came to be can be parked for another day.
What's the elephant?
Notwithstanding the natural tendency or training of a lawyer wanting to go into battle for their client and win, the elephant in the room remains:
How do the financial returns (for the lawyer) of litigation compare with early, well-managed (and lawyer-assisted) mediation?
One of Sydney's leading litigation lawyers once said to me "even the best lawyers don't win every time."
In my opinion, a well-managed mediation, with a comprehensive pre-mediation intake with both clients, can achieve some of the best outcomes for a client – timely, confidential, cost-effective; allowing both clients to move forward in a respectful, informed way.Mediation - An under-utilised approach within our legal system, often used under protest or once all other costs have been exhausted.
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