Why Tomorrow’s Best Lawyers Should Have Basic Mediation Skills

I believe that lawyers should have basic mediation skills because lawyers have an important role in mediation by protecting their client’s interests while facilitating them in resolving their dispute through a negotiated agreement, and by helping them analyze the strengths and weaknesses of their case, both of which optimize the mediation process. 

 Mediation skills balance lawyers’ advocacy and adversarial skills 

Also, mediation skills, which include negotiation skills, balance lawyers’ advocacy and adversarial skills with skills that enable them to efficiently, effectively, and ethically manage their caseloads by distinguishing between matters suitable for negotiation and mediation versus litigation. These skills also enable the lawyer to be a positive part of the mediation process rather than a negative part, which can happen if mediation is exploited for the purpose of discovery and posturing rather than resolution. An adversarial approach can easily derail the mediation process.

Important Part of Mediation Process

Lawyers have a valuable role of providing legal advice to their clients throughout the negotiation and mediation or other alternative dispute resolution processes and before a settlement agreement should be signed by the parties, in part because third party mediators have a duty of neutrality, even if evaluative in style. 

Advantages of Mediators

Mediators are ethically if not legally prohibited from giving legal advice. They are also ethically expected to encourage the parties to seek legal advice, because mediation is a voluntary process in which the mediator is neutral and the parties are to participate in good faith and with self-determination, which means they should have all the information needed about their matter to make an informed decision and can end their participation at any time. 

The mediator wants to ensure the parties have had the opportunity to and in fact disclosed, shared and exchanged information relevant to negotiating and reaching an agreement, and legal advice is information that both a mediator cannot provide and that each party should have to make informed decisions. In the context of litigation, mediation advocates also increase a judge’s confidence that clients received legal advice about their respective legal rights and obligations before signing their settlement agreement that they are asking the judge to approve.

Confidentiality

Mediation has distinct confidentiality duties with which lawyers need to be familiar. It is a private process as opposed to litigation that is largely a public process. 

Different Outcomes

Litigation provides parties the least amount of control over their outcome, while mediation provides them control over their outcome and the mediator control over their process with their agreement, and this puts lawyers’ clients in a very different position to resolve their dispute. The more lawyers understand these and other differences in the processes, the more lawyers can facilitate the mediation process while advocating for their client’s successful resolution of their dispute. 

There are also many innovative approaches to mediation and other dispute resolution processes which can be useful for lawyers in supporting the negotiation and mediation process.

Also read:How to Communicate Effectively Remotely with Your Clients

Effective remote communication involves the intelligent application of approaches and technology to the functions of the dispute resol...

Innovations in Mediation and Dispute Resolution

I am inspired by and most interested in new approaches and technology innovations in mediation and dispute resolution which are designed and delivered to enhance the efficiency, effectiveness and ethical aspects of the process. Identifying innovations with these characteristics goes beyond the approaches and technology themselves and includes intelligently applying them to the functions being performed as part of the process. Further, it involves assessing this on a client-focused basis through communication, information exchange, disclosure, technical support, agreement, flexibility, and alternatives. With that in mind, there is a range of platforms and tools that cover a range of functions.

And, this is a very practitioner-specific decision as to which platforms and tools fulfill their functions with some being common to all practitioners and some being unique to certain practitioners. 

For example, there are platforms that support or manage everything from intake, invoicing, scheduling, calendaring, document exchange and signing, preparation, and negotiating to resolution and agreement drafting and signing. In comparison, other platforms or tools support or manage one or more of the above as well as other functions involved in a particular practitioner’s process. Many of these platforms evolved from online dispute resolution that began in e-commerce and the courts and has expanded in the private practice context at a heightened pace since the pandemic drove practitioners online. In my case, I began developing my innovations in processes and technology integrations, my website, and business model in 2017. And, with general industry development has come the development of regulations, standards, guidelines, ethical considerations, and best practices.

As to the decision-making part of any process, mediators and other dispute resolution practitioners and their clients often have too much information to manage due to more variables, stakeholders, interruptions, and technology, which can lead to information overload and drive decision-makers to rely on more subjective than objective bases and compromise successful outcomes, whatever the context. Innovations in decision science using technology, especially that which is designed without inherent bias, are especially valuable in integrating efficiency, effectiveness and ethics into this function of the dispute resolution process and is one of my areas of specialization as an attorney whose practice as a neutral in negotiation and mediation and as a dispute resolution analyst is focused solely on online dispute resolution services rather than the practice of law.

So, I would encourage lawyers to acquire basic mediation skills, identify their process, and intelligently apply approaches and technology innovations in a way that optimizes the efficiency, effectiveness and ethics of the process in which they are participating.

Susan Andrews is Founder and Principal of Andrews Dispute Resolution. Susan is an Active Member of the Kentucky Bar Association (KBA) and both a Member and Officer (Vice Chair) of its Alternative Dispute Resolution Section, a Life Fellow of the Kentucky Bar Foundation (KBF), an International Mediation Institute (IMI) Qualified Mediator, a Volunteer Mediator of the Fayette County District Court Small Claims Mediation Program, a Member of the American Bar Association (ABA), its Dispute Resolution Section, and its Online Dispute Resolution (ODR) Task Force Working Group III, Guidance with Respect to Special Issues Relating to Private ODR, a Certified Dispute Resolution Analyst of NextLevel Mediation, an Associate Member of the International Council for Online Dispute Resolution (ICODR), an Individual Panel Member of ADR ODR International, and a Fellow of the World Mediation Organization.

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