As lawyers, we do not often need to think about the nature of our professional skills or about how we use them and when we use them.
But it can be helpful for us to think about these kinds of things because it can lead us to perform in a better way in different contexts.
I believe that thinking about how we use our skills in different contexts can not only help mediators make sense of their role but, also, it can help litigators understand how best to work with a mediator to get a successful outcome.
It has been natural to recruit litigators to be mediators of disputes. Litigators know how to analyse the issues and can understand how they relate to the dispute. They know how these issues exert pressures.
Litigators also learn a thing or two about how to negotiate a compromise of litigation, something different from negotiating, for example, a commercial purchase. All these things are invisible to non-litigators, as we all saw at the beginning of our careers. Transactional lawyers also make good mediators, sometimes better than litigators, but that is a topic for another time.
The task of a litigator is to apply skills and scholarship needed to get a defined result. A litigator applies those skills to people. The effect upon these people does not have to matter at all to the litigator, although there are ethical constraints.
Indeed, the potential hurt that can be caused to somebody by the application of techniques is why we have ethical constraints. Also, when a litigator negotiates with an opponent, (note the word ‘opponent’), the task is to use every ethical technique available to get the best possible deal even if that deal is more than the client legally deserves.
A mediator of litigation disputes must have the same kind of knowledge and experience. This is because a mediator has to be familiar with the subject matter of the dispute and understand the total significance of the issues. A mediator has to understand how negotiations work in the context of litigation. But the positions of mediators and litigators are completely different.
Unlike a litigator, a mediator has no power or authority to compel anything. A litigator expects that a client will accept his or her opinion about a case and how it should progress. Perhaps that is why many barristers are dismayed when, acting as a mediator, their expert legal opinion is not accepted.
A mediator has no power and, after all is said and done, a mediator is just an invited guest.
So what use is all the mediator’s litigation experience, all of that reserve of technique and legal knowledge?
It forms the essential basis for a mediator’s ability to perform the entirely different task of mediation. Like litigation, that task also requires analysis of the legal and factual issues, an appreciation of how issues matter or don’t matter. Almost always, a mediator must have the expert ability to handle the issues to assist an understanding of what ought to happen but without owning any judgment about them. An ability to offer a legal opinion may be useful or, in some cases, crucial, but it is to be offered on terms that are not the same as the opinion of a retained litigator.
Very importantly, unlike litigation, a mediator is obliged to consider the parties’ sense of loss, in some cases their grief, in many cases their hurt feelings and, in most cases, their fear of the future. The things that a litigator must ignore, the mediator must take to heart.
A litigator is rightly immune to sensing somebody’s anxiety or emotional pain when applying a necessary technique. But a good mediator must make and keep a personal connection with everybody at the mediation. This includes the parties’ solicitors who undoubtedly have a natural and important stake in the outcome.
Unlike a cross-examiner’s faux outrage or sympathy, a mediator’s emotions, if they emerge, must actually be sincere. Unlike a litigator who asks questions designed to limit the scope of a response, and who is often right to cut off unresponsive answers, a mediator’s interest in hearing new things should be unfeigned.
That is why one of the mediator’s key techniques is to let a person talk even when the content appears to be immaterial and, while listening to much that does not matter, still maintaining a genuine interest in what is being said so as to be able to catch something of real importance that might just be the key to the whole case. That is one of the reasons why some mediators arrange to speak to clients and witnesses before the day of the mediation.
As to negotiation, a mediator should be an able negotiator and should understand the dynamics of negotiation. However, it is not the mediator’s function to use the techniques of commercial negotiation to obtain the “best” outcome out of a party.
It is the mediator’s function to use negotiation to achieve, if possible, a settlement that results in neither party feeling that somebody has made a fool of them or that they have lost the case. It should be a mediator’s aim, as soon as possible, and if possible, to gain the parties’ trust that that is not going to happen. Fear of feeling that way has stifled many a potential settlement.
Finally, there is a big difference in the pay-off that litigators and mediators feel when their professional work is met with success.
The litigator feels (often rightly) that their own application of skills has produced a win for the client. In truth, a mediator can rarely claim emotional satisfaction for that reason. That is because a mediator should engage in the process with as light a hand as possible and should never forget that it is the parties and their lawyers who actually settle every single case.
One Response
That’s such a useful and valuable article. Walter is an old colleague of mine, going back to student days and his wisdom has never wavered. We are fortunate to have the support of such a luminary, with great practical advice and insight into the practice of our profession.