We have been largely shut out of this growing market because our professional solicitor clients still regard most barristers as tendentious, and rooted in the orthodoxy of winning their case. Ironically, the Bar needs to fight back, and carve out a new market as specialist mediation advocates at a time when litigation is shrinking. For those who understand the mind-set required for mediation, and can use the sophistication of its dynamics, barristers can provide added value to our existing client relationships, and develop a useful area for new business.
Growing a mediation practice
The Bar Council’s Alternative Dispute Resolution (ADR) Panel has for some time been supplementing its work of supporting barrister mediators and arbitrators by promoting awareness for all barristers of the commercial benefits of having an expertise in mediation practice. Those who regularly represent parties in mediation understand that the process is more likely to succeed in effecting settlement, and to provide the client with a more desirable outcome by reference to underlying need and interests, than a judge or arbitrator can deliver, and with far less cost and risk. The practitioner/client relationship will be enhanced. The satisfied and happy client is the professional’s best asset for repeat business, and embodies a free marketing device for your practice and your industry – so expanding your market in two ways.
The business case for mediation advocacy is also aspirational:
- Enhanced public reputation in innovation and leadership – the Bar does not always have to be seen by lay clients as ‘old fashioned’.
- Promotion of positive perceptions in both professional and lay clients, rather than the negativity which can be associated with litigation.
- Communicates a clear message that cost containment is wired into your ethos.
- Meeting user expectation that providers and advisers of ADR services devise strategies to end disputes on acceptable terms as quickly and cost-effectively as possible.
The worry of reduced litigation spend is therefore transformed into a desirable aim for the development of solid client relations, rather than being seen as a short-term loss to the practice.
What clients want
Recent research conducted at the 2014 International Mediation Institute conference in London shows that consumers of mediation recognise its benefits, and in this order of importance:
- Certainty: risk reduction and control of outcome.
- Expense: cost containment.
- Efficiency: focusing on the key issues in the dispute.
- Relationships: preventing conflict escalation and retaining relationships whenever possible.
- Speed: securing the earliest possible outcome.
- Enforceability of outcomes or awards.
The experienced mediation practitioner should be able to deliver all of these to his client, and promote an ability to do so. In any market the successful service provider is in tune with, and can deliver, what his client wants. Yet mediation is still underused, mainly because one of the parties might not be familiar with, or experienced in, the process, or because external legal or other advisers do not propose mediation often enough, quickly enough, or as a first resort.
Trained mediation advocates can therefore be seen as market leaders and progressive thinkers, engaging their clients in a process that doesn’t attribute fault or blame, looks forward rather than backwards, and is focused on problem-solving according to client needs, whether within the confines of their legal case or outside it. Mediation sets a far wider horizon for participants.
The role of the barrister as mediation advocate
In mediation practice the core skills of the barrister in using critical analysis, functional problem-solving and communication are not diminished, but enhanced. Barristers retained in mediation as a party representative are freed from the constraints of the CPR (although not the ethical responsibility owed by the profession). The circumstances may create a flexibility of outcome far removed from the powers of the court, and you may be asked things by your client well outside the normal requirements of orthodox practice. It can be exhilarating, if you have a clear understanding of your role, to contribute to process choice, active management of that process, client handling and control, strategic planning and identifying outcomes that will satisfy both parties, not just your own. It is challenging, intellectually stimulating and rewarding; and to do it properly, far harder work than a trial – whatever others may have told you.
Both the Standing Conference of Mediation Advocates (www.mediationadvocates.org.uk; www.scmastandards.com) and the IMI (www.imimediation.org) promote Standards and Competencies in Mediation Advocacy as a tool to secure adequate training and professional development; and the Bar Council’s ADR Panel offers a popular annual training seminar.
Mediation is a holistic process
Remember above all that you are no longer simply the professional mouthpiece, operating as a physical barrier between the owner of the dispute (your client), and the decision-maker (the judge). In mediation the decision-maker is your client, and you are part of a team – not even necessarily the team leader. You will be an advocate of your client’s cause, to the extent the process permits. But in addition you are an adviser, confidant, friend, ally, supporter, social worker, hand-holder and many other things you probably didn’t sign up for when you came to the Bar. You may find yourself frustrated and emotionally involved in a way you never contemplated: professional detachment can become difficult, turning eight hours into a much longer day.
Mediation is a holistic process which caters for all of your client’s concerns – and indeed all of those of the client on the other side. Your role will be different on each and every occasion, and you need to understand and embrace the possibilities, even as you seek out this new business.
The Bar Council’s ADR Panel is holding a seminar on document preparation for mediation on 11 February at 17:30 at the Bar Council, 289-293 High Holborn, London WC1V 7HZ. The Panel will be running another all-day training session on mediation advocacy later in 2016.
Is it for me? A snapshot of the mediation advocate’s role
- To be able to advise the client whether, and if so, when to mediate, being appraised of all the advantages and disadvantages attaching to your lay client’s interests.
- To be able to explain with confidence the process, the procedure you desire for your client’s mediation, the cost, timetable and potential outcomes, and to compare these with both litigation and other dispute resolution methods.
- To engage actively and on an informed basis in mediator selection.
- To advise upon the content of the mediation agreement.
- To understand and be able to advise upon the corpus of law now surrounding mediation practice concerning:
- validity of contractual clauses containing agreements to mediate;
- enforceability of the mediation agreement;
- confidentiality of the process;
- existence or otherwise of a ‘mediation privilege’;
- enforceability of settlements obtained in mediation;
- mediation under actual or implicit duress by the courts;
- all questions of costs.
- To engage directly and proactively with the mediator prior to the mediation on matters of process, including date, venue, attendees and their roles, and, where appropriate, on the issues, potential solutions and potential problems.
- To engage in a pre-mediation conference with your lay client to obtain a clear understanding of not just the legal case, but the client himself, the client’s wider business affairs, financial viability, reputation, perceptions of the other side’s position, any ongoing or intended ongoing relationship between the parties – whether commercial, social or personal; the client’s needs, aspirations and expectations from the process. What, for the client, represents success; what is his ambition for the outcome; and what is most important – not to the law, not to you – to the client. And what might be the other party’s views of such questions?
- To prepare the documentation required by the mediator or the process, including a case summary, list of issues, position or interest statement, schedule of financial claim, costs schedule or budget, draft settlement agreement or heads of terms, draft Tomlin order, or any legal, expert or evidential analysis that may be apposite to the circumstances.
- To prepare conscientiously for the mediation day, including getting up the legal case to the standard needed at trial, subject only to the available information; to build on that foundation your knowledge and arguments in respect of the client’s wider needs and interests; to understand your client’s aims, and prepare an opening statement accordingly; to formulate your negotiation tactics; to know how to proceed in joint session; to know when and how to use the mediator as an ally to find out information and promote a particular deal; to know when to protect the client from being manipulated; to know when and how to make concessions; and always to be able to advise the client what will probably happen if a settlement cannot be achieved – the cost of walking away, formulated as part of the best alternative to a negotiated agreement (BATNA) and, alternatively, the worst.
- To have the strength to advise the client when he should accept, and when to reject an offer, and to explain your reasoning; but equally, to have the strength to accept the client will have his own agenda, and you will not enjoy the control you have in a courtroom environment.
Contributor Andrew Goodman Bar Council ADR Panel