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Mediation
Advantages
of Mediation
There really is no disadvantage to the mediation of disputes. In fact, only a few types of cases cannot be benefitted by mediation. Those cases consist of essentially the litigation of legal principals where judicial precedent is required for the public good.
On the other hand, the clients may be somewhat skeptical of mediation. After all, a layperson or a business entity needs to be educated that mediation is not a sign of litigation weakness but a matter of good common sense. The following examples are a number of important reasons why most parties are benefitted by mediation. Unlike litigation, mediation is:
- The
least intrusive form of third-party involvement in a dispute
and allows parties to retain control over decisions important
to their lives.
- A
means to tailor outcomes to the needs and interests of
the parties which reflect their priorities and preferences.
- A
process which can address issues and concerns outside
of the pleadings which may be necessary to a resolution.
- A completely confidential forum.
- A
forum which empowers the litigants to more fully understand
the dispute, including the strengths and weaknesses of
their adversary.
- Usually
faster and more economical than continued litigation.
- A
means to possibly improve relationships between parties
or to at least achieve greater satisfaction with the legal
system and outcome.
- A
hospitable venue for communication to explore common ground,
eliminate misunderstandings and to identify true interests.
- A
means to avoid zero-sum game and provide an opportunity
for a potential win-win.
A
New Advocacy
The mediation process does not eliminate the critical role
of legal counsel. Preparation for mediation and for trial
are certainly not mutually exclusive. Indeed, through mediation
the other party must be convinced that you are ready and
able to try the case if necessary.
On
the other hand, as an attorney, you are more than just an
advocate. Ethical practice also includes your role as an
advisor and the duty to give candid advice. MRPC 2.1. Such
candid advice can include a recommendation that your client
may be well served by engaging in a professionally hosted
mediation. Cases resolved through mediation normally result
in satisfied clients. Such results improve the attorney-client
relationship, the possibility of future referrals and overall
respect for the legal system.
However,
effective mediations require a different type of advocacy.
It requires preparing your client for mediation by dispelling
them of television notions of what a day in court is like;
discussing how the mediation process works; and developing
a realistic assessment of value of their case. It requires
the advocate to be a good listener and thereby fully understand
what brought the client to you, whether the motivations
have changed and where the real needs and interests lie.
Such an understanding and goal setting is essential to effective
mediation advocacy so that at the time of mediation, the
attorney and client basically of the same accord.
Additionally,
effective mediation advocacy requires a different type of
argument and summary. While the facts and the law are still
essential, the focus of mediation should be the underlying
drivers of the controversy, existing impediments to resolution
and possible ideas which may remove the barriers. Mediation
provides a safe environment which is privileged and the
communication is confidential.
Consequently,
as an advocate you have a forum to explore different avenues
of resolution, as well as the unique perspective to hear
the adverse party's position in a candid way not available
through traditional discovery. In addition, as a mediation
advocate it may be possible to reach partial settlements
or remove certain impediments to resolution so that a global
resolution may later blossom.
In
short, effective mediation takes discussion, planning, preparation
and real concern for your client. It provides an opportunity
for creativity and the exercise of the greatest of human
traits: The ability to reason and negotiate.
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