As a freshly minted lawyer, I came to a realization within a few months of joining the workforce- my very expensive university education prepared me for only half the battle. The part they don’t prepare you for at university is how sometimes the biggest obstacles you can face in attempting to resolve a dispute are put there by the same legal system you make a living in and sometimes, even by your own client. When I was assigned to my first mediation, despite all the training I had received at University, I found myself asking “What does a mediation advocate do?”
Private Mediation is still regarded with skepticism in India and as a lawyer, you only ever see the inside of a mediation session in Court referred mediations. Contrary to what most litigants are led to believe, Court mediation is quite different from Private mediation. The presence of a Judge acting as mediator in the mediation chamber; albeit not the sitting judge in the case from which the dispute was referred to mediation, gives Parties the impression that they are merely in a smaller, more private Court room. This creates the first hurdle that needs to be crossed: unrealistic expectations.
The Client believes that they now have the golden opportunity to convince the Judge/Mediator of their case and justify their position. They believe that if the Judge/Mediator spends an hour or two listening to the merits of their case, it would persuade the judge to see why they are entitled to what they want. Then comes the even more dangerous belief that if the Judge/Mediator is on “their side”, they can use their authority and gravitas to influence the other Party to believe that your Client’s demands are reasonable and must be met. As mediators and mediation advocates, this is where we need to step in but it is also the most difficult part of the mediation: negotiating with your own client.
Managing a Client’s expectations and advising them on a course of action turned out to be far more difficult than negotiating with the other Party. A mediation advocate can spend any amount of time explaining the benefits of separating interests from positions but surprisingly or unsurprisingly, the Client will still be reticent going into a mediation. Most Clients seem to believe that any movement from their initial positions would be seen as an admission of wrongdoing and compromise which could affect their chances of getting what they want. This fear goes so deep that sometimes they even withhold information from the mediation advocate for fear that their position or interest will not be taken seriously if their advocate believes they are guilty of their wrongdoing. Thus, the task that lay ahead was to help the Client take a step back and look into the magic crystal ball of the future. We must help them see the consequences of each decision they take. They then start to see the merit in moving from their position. Little by little, they slowly reach the precipice of making a decision that’s mutually beneficial to both parties or at the very least, in their own interest. However, they hesitate to take the next step because of fear that the legal system will fail them. This is the next hurdle that needs to be crossed – fear of falling without a safety net.
The Client is a pragmatic person. He/she knows that the conclusion of a settlement agreement is not the happily ever after. They fear that the legal system will not be able to help them enforce the terms of the settlement sets in and they’re now trying to rapidly backtrack and cover all their bases. One Client for example, insisted at the penultimate session that a clause must be included in the settlement agreement wherein he would be allowed to revive all his old claims if the other Party breached the terms of settlement. Ordinarily, the course of action in such a situation of breach would be to sue for breach of contract. But the Client did not seem to think it was enough. The Mediation was stalled on this one detail because the other side refused the insertion of such a clause because they wanted there to be finality to the agreement and did not want any nasty loopholes open to revive old claims. Here is where we must step in again as mediation advocates and be honest with clients.
Being honest with the Client is more difficult than what it is made out to be in the dusty voluminous ethics textbooks; especially when what you need to tell them is that they might not be making the right choice for themselves and could possibly cause the entire mediation session to fail. A debate that frequently pops up in idealistic discussions amongst young mediators and mediation advocates is whether we can really push the client towards a settlement if we believe the end is so close and the client is merely being stubborn. Some would argue that we have no place to do so as party autonomy is most important and some would argue that clients hire us for our advice and to push them to make difficult but necessary decisions. Nobody has the right answer to this question so I realized the ethical dilemma would have to be answered a different way. We did a lot of brainstorming and eventually came up with the idea of recording the terms of the settlement in the form of an undertaking to Court so that breach would amount to Contempt of Court. This was a solution that satisfied the Client because all he really wanted was not to be vindictive- but rather just a safety net.
And for the first time in my career, I saw the real-life application of a principle that has long been touted as the single most beneficial and attractive feature of mediation: Parties are least likely to deviate from the terms of a settlement agreement when they have engineered it themselves. I was finally able to answer my initial question: What does a mediation advocate do? At this point, I believe that a mediation advocate’s role is to help the Client construct a safety net for themselves and help create room for them to explore as many options as possible.
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