Lawyers in Mediation
One morning this week, as I started my day reading the news, as usual, I cringed at yet another hint that we might indeed be losing our grip on that promising future I have always envisioned. And this time revelation came in the way of incompetent (to say the least!) lawyers filing a motion for their client, a very famous public figure. The document followed no standard of judicial procedure, nor contained certain basics (again, to say the least) expected from such a legal instrument. According to former Federal Prosecutor Glenn Kirschner it “[read] more like a fundraising email than a legal brief”. A true disappointment and embarrassment, in view of the gratitude and respect I have for my own legal education and profession, and the role it’s played in my life.
Nevertheless, that incompetence contrastingly reminded me of the invaluable importance competent lawyers have at the Mediation table. It reinforced, in me, the perception that the Mediation process can only get complemented and sophisticated with the weight of the credibility, candor and ethics that lawyers carry with them in the exercise of their profession.
Now, before I continue praising the importance of lawyers in Mediation, I have got to be clear that I have had cases, as a Mediator, in which the presence of lawyers was challenging, and at times detrimental to the process itself. However, those had nothing to do with the presence of lawyers per se, but rather with the idiosyncratic personalities of those few. Nevertheless, this rant is not about those (albeit a few of “those” are the ones responsible for my reverie today). This piece is about the others; the great majority of them, I believe. The ones that honour their oath ethically and knowledgeably.
In Mediation, those lawyers, at first glance, bring more credibility to the process itself. By being licensed to practice law, they provide the parties with a symbolic allure they may exude in ways of their legal knowledge and the subsequent zeal for the rule of law. In one way or another, they represent the justice system their clients rely on. Such circumstance allows parties to maintain their trust in the process, despite the lack of some formalities one would find in a Court of Law.
In Mediation, lawyers are the only ones who can instruct and guide their clients as to what their rights are, as well as to what their risks and options might be. Both legally and procedurally.
As zealous advocates for their clients, lawyers may dispense valuable contributions to the Mediation process, as such. They may start by helping the Mediator and the opposing party design and agree upon a comfortable and efficient process for their clients, and in view of the dispute at hand. Furthermore during the process, they may call the Mediator’s attention to crucial factors at play, emphasise points that are of importance to their clients and/or the process, and decide upon certain actions to be taken along the way - be them as minor as when to take a break, or as major as when to make concessions, or when to make a final decision upon a proposal for resolution.
Lawyers who, in addition to their legal knowledge, also possess true knowledge of Mediation, will always be better advocates for their clients, and subsequently contribute tremendously to the success of Mediation as a viable and effective process to resolve disputes.
So in the end, lawyers in Mediation are, in reality, essential partners for the parties and the Mediator. For they will not only help devise an applicable and effective process, but also guide their clients properly and accordingly through it, whilst at the same time helping the Mediator conduct the mediation in a streamlined manner.
Finally, I need to stress that athough the importance of lawyers in Mediation cannot be ignored, the need for a better understanding and knowledge of the process of Mediation by the lawyers themselves can never be overstated. Lawyers need to educate themselves of the intricacies of the Mediation process, so that they can realise its amazing power and efficiency in their zeal for their clients, and in the search for justice. Only then will they be the needed partners, in essence.
Send a commentAfter all, in the pith of it all, lawyers are the true peacemakers.
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