Tuesday, 23 September 2014

Mediation is just another form of negotiation

Today I helped a client at a mediation. One of the striking things about today's mediation, as opposed to any other, was that the mediator announced that he had been involved in over 4000 mediations. The first thing I thought when I heard that number is that I thought that it was a huge number- and then I am afraid to say that I thought that he was old!

However, the number made me reflect that I have been attending or running mediations as a mediator since, unbelievably, 1986. I can't boast of having had over 4000, but I would guess well over a 1000 or 2.

What struck me about all of this is the obvious- mediation is just another form of negotiation. Good lawyers should be able to negotiate on behalf of their clients. The reality is that there are negotiators and there are negotiators. An acquaintance of mine, who sold finance to buyers of cars, once joyfully told me the story of how car salesmen used to love it when lawyers came along to buy a new car. Why? Because the lawyers thought that they could negotiate- and assumed that when they signed the deal they were winners. The reality was that the lawyers were particularly poor negotiators, who did not know all the landscape before they went to buy a car- so when they went to buy a car while they thought that they were getting a bargain, the salesmen sold them the most expensive option. Last laugh to the salesmen.

When I say that mediation is another form of negotiation- that's all it is. Don't get me wrong- if you have a mediation then as a lawyer you must be prepared. It always amazes me the number of lawyers who unfortunately do not prepare for court adequately, and are left floundering when they get there. Mediation is no different, in the sense that preparation is essential.

But that's not all, of course. The lawyer's role in the mediation is to help guide the matter to resolution- if it is in the best interests of the client. Some of this come from reality testing, and making sure that the client is realistic BEFORE the mediation about the likely outcome. There is no point posturing before a mediation with a hopelessly exaggerated, unrealistic ambit claim, if all that it achieves is that the client concerned then believes that they are entitled to such an amount, and then won't back off. As well, an ambit claim has the profound effect of torpedoing any goodwill from the other side which may be vital in settling the matter.

After all, if the matter doesn't settle at mediation, then it may result in tens of thousands of dollars and months of misery while the matter proceeds through the Family Law Courts- let alone what untold misery could be inflicted by the parents on their children (even if a property dispute).

But why I say that mediation is a form of negotiation, is that despite the usually very helpful role of the mediator, mediation is not an end in itself. It is merely another form of negotiation, and something that should come to most family lawyers well. While mediation is the flavour of the month, negotiation BEFORE any mediation, or INSTEAD of mediation, or if it fails or does not resolve everything, negotiation AFTER a mediation should never be ignored. Those negotiations might settle the matter, even though they may not involve the intervention of a very helpful and very skilled mediator. 

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