Mediation: Are Lawyers Missing a Trick?

50 years ago, it was normal for a lawyer to be the go-to trusted adviser to businesses and families on multiple issues. However, with increased specialisation, lawyers lost the ability to be the ear on all their clients’ issues.

Accountancy firms capitalised on this gap in the market developing their consulting expertise and became firmly entrenched as business advisers.

The scope for lawyers to increase their value add as business advisers is extensive. The key is for them to position themselves with their clients as a resource to create value. The role of General Counsel has to some degree done this, but private practice lawyers can do more to position themselves as business advisers and, in the words of a litigator I once trained with: “save your clients a fortune and be the good guy”.

The points below focus on making sure that through the use of mediation skills, lawyers can be “back on top” in their position as trusted adviser.

Although this might sound counter intuitive, withholding advice can be crucial to getting clients what they want.

Listen Like a Mediator

During a private party session or “caucus” with a client, the mediator effectively becomes the client’s conflict coach. They may do this to a greater or lesser degree with the representing lawyer depending on how engaged the lawyer is in this part of the process.

Listening like a mediator means listening listen deeply to aspects of the case that are important to the client. This means listening to and not disregarding the issues that seem “irrelevant”. Further it means reflecting back what you have heard from the client. This serves three purposes:

  • When the client feels that their point has been truly heard and understood, they are often happier to let it go and focus on more “relevant” issues.
  • Those issues can often get underneath clients’ commercial objectives and open up opportunities.
  • When the client hears back what they are saying through someone else’s mouth, they often get a picture of how they are perceived or understood. This sometimes causes them to change tack.

 

Withhold Advice

Although this might sound counter-intuitive, withholding advice can be crucial to getting clients what they want. Most mediators operate from the basis that clients know more about their situation, their business and their goals and aspirations. It is the reason why so many mediators are not specialists in a subject but rather in the process. It is also the reason why most agreements reached at mediation are sustainable. The mediator enables the client to work through the commercial realities as opposed to having them forced on them. The result is that the client is more bought into the agreement and more pragmatic about it.

Where a lawyer can act as a sounding board, they enable their client to focus on and develop commercial solutions. In turn this avoids jumping in on litigation strategy or point scoring. This means that when legal advice is finally given, it can truly support the commercial decision-making process as opposed to driving it. It also helps the client to see the lawyer as a truly commercial partner as opposed to an inconvenience.

Agreeing when best to negotiate is the first step in a negotiation strategy.

Focus on the Business Case

Focussing on the business case for mediation and reviewing that business case from the get-go places the choices about litigation firmly on a commercial footing. It also gives the lawyer insight into the commercial and other priorities of the client before the litigation gains momentum.

Lawyers have an obligation to inform the client about the legal costs which can not only be frightening for the client, but also the lawyer, particularly if they feel under pressure to win the work and hit targets. That said, by considering mediation at an early stage, it demonstrates that the lawyer is cognisant of his/her professional obligation, appreciates the commercial realities of litigation and has a desire to save a client considerable costs. A firm focus on the business case can also identify risk both with respect to the litigation but, more importantly, other aspects of the business on which the client may well seek support. This, in turn, provides opportunities to refer the client to other departments throughout the firm and add value to the client.

Lawyers often need to adapt perceptions or behaviours by realising that by moving to mediation, they will not necessarily relinquish control of a case.

Plan the Negotiation Strategy

Agreeing when best to negotiate is the first step in a negotiation strategy. No-one wants to negotiate from a position of weakness, so positioning the client well before starting to look at concessions is vital. In addition to this, planning negotiation styles with the client can create clarity in the negotiations and avoid the board table equivalent of a “random punch up”. It can also help align commercial negotiations or conversations that are happening in the background to legal conversations and render client and lawyer a true team.

A negotiation strategy should generally be more in depth than may seem necessary in the first instance. It is not just about top and bottom lines. It may involve non-aggressive strategies to understand the more hidden aspects of the other party’s motivations and drivers better. It may involve thinking about principles on which the negotiation is to be focused. Working with the client on this has the advantage that the client will often understand the other sides’ preferred negotiation style (collaborative, competitive, compromising, accommodating, avoidant etc.) and enable the adviser to adapt their approach to get the most favourable results.

Mediation is essentially a commercial solution. It includes negotiation, conflict coaching and working with the law to achieve the client’s optimum objectives.

Incentivise Associates and Consultants Appropriately

Whilst lawyers want to achieve the best results for their clients and act with integrity, they may be tempted to delay mediation which, if proposed at an early stage, could save their clients considerable sums of money. It is quite normal, to be subconsciously motivated by billing targets which can encourage this delay.

Lawyers often need to adapt perceptions or behaviours by realising that by moving to mediation, they will not necessarily relinquish control of a case. Instead, they will be working with the client (and possibly the other side) to crystallise the issues and achieve a workable deal. At worst, if mediation fails to resolve the issues (and a large majority of cases settle as a consequence of the mediation process), then the client will know that their legal team has done everything possible to resolve the claim, with litigation and associated costs being a last resort. This builds the trust relationship with the client and encourages them to come back to seek advice on other issues.

Where solicitors are appropriately incentivised for referring the client to other appropriate members of the firm or even externally, a better result can be achieved for all involved. In most firms, this will involve a review performance targets and remuneration, which can be challenging. However, it has the potential to transform the firm’s brand identity and message focusses towards achieving the best result for the client no matter what.

Mediation is essentially a commercial solution. It includes negotiation, conflict coaching and working with the law to achieve the client’s optimum objectives. Drawing on mediation and the skills mediators use, lawyers do not have to do much to add immense value to their clients and return to the role of trusted adviser. The alternative is an increasingly specialised competitive market in which the lawyer is much more likely to become the villain of the story.

Louisa Weinstein is an experienced meditator and the author of 7 Principles of Conflict Resolution, out now, priced £21.99.

She has carried out extensive mediations covering property, construction, corporate-commercial, shareholder disputes, media with a range of corporate, public sector and high-profile clients.  She is also a regular contributor to the Civil Mediation Council having also spoken at the Annual Conference in the past. 

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