The work of a lawyer rarely involves simply knowing and applying the law. Beyond the black letter of the law lies a human dispute, one so heated that the parties involved felt the need to engage legal representation and advice. Taking this step can often be wise, but it also requires nuance. Clients are not always initially clear about what they want, and the most aggressive course of action is, at times, not the optimal approach.
Ask open-ended, emotive questions
“It is often easy for lawyers to focus on their client’s legal rights or entitlements and jump to assumptions about what is important for the client,” said Cecily. “My experience as a mediator is that it’s not always about the money!”
Cecily encourages lawyers to pose emotive, open-ended questions.
“Some good questions to ask clients include, ‘How is this dispute affecting you?’, ‘What do you want your life to look like 5 years from now?’, ‘What is most important for you?’
“The answers to these questions may not be what you expect, and more importantly, it may influence your advice about how to resolve a dispute.”
Look beyond the surface of the dispute
Mediation, and the process it involves, is particularly well suited to situations when an enduring relationship – business, personal, or otherwise – is at stake.
“It is a process that allows parties to come face-to-face and talk about their situation openly with each other,” Cecily said. “Disputes are not always what they appear on the surface.”
“Acknowledgement goes a long way. If disputing parties can acknowledge each other’s hurt, disappointment or other feelings about the dispute, then they have a greater chance of moving forward to focus on the future and resolve the issues,” said Cecily.
This approach can at times, feel at odds with adversarial law. However, it could also serve to defuse a dispute.
“Genuinely listen and summarise information back to your client to check your understanding is correct,” said Cecily. “Be consistent in your communication with the other party. Show good faith in negotiations by keeping promises, avoid tricks and tactics for the sake of “winning”.”
Reality-test client instructions
Clients rely on their lawyers to remain level-headed, especially at times when they may not be. Should a dispute become heated, mediators can often ‘reality-test’ solutions proffered by the parties.
“You can ‘reality test’ clients on the risks and benefits of taking a particular course of action,” said Cecily. “People can often be blinded by anger or disappointment during conflict, so they lose sight of what is really important to them and their longer-term future. Lawyers and their clients should try to step back and take a bigger picture approach to disputes.”
Take a long-term view
In most cases, it is imperative to retain a long-term view of the client’s relationships – particularly if the client is at present emotional or aggressive.
“Encourage your client to consider how the opposing party might think or feel, which may encourage your client to acknowledge the other party, build rapport and lead to better outcomes. After all, disputes are rarely black and white – usually both parties have contributed to it,” observed Cecily.
As a lawyer, Cecily was attracted to mediation because parties had ownership of the process and the outcome.
“No one is telling you whether you’re right or wrong, or what to do. You and the other party have ultimate control over the outcome and how your life or business will move forward into the future. Although this can be a scary prospect for some people, studies show that parties are much more satisfied with the process and outcomes are effective and lasting.”
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