How to get the best out of Mediation for your client

11 June 2020

Mediation has recently received a lot of attention as a way of speeding up dispute resolution and dealing with court and tribunal backlogs.  The recent promulgation of Rule 41A means that parties in the High Court now have to apply their minds to the prospects of settling matters before they get a date on the roll.  The Road Accident Fund has indicated that matters need to be settled, either by case managers internally or through external mediation.  The recent Disaster Management regulations have included mediation if parties have disputes against the state in these COVID19 times.

This is welcomed by Conflict Dynamics as we have long advocated for the sensible and speedy resolution of disputes through mediation.  Over the years we have trained and accredited more than 600 mediators, many of whom are available on our CD Direct Panel of mediators.

The focus now shifts to the attorneys who will represent their clients in mediations.  They will need to understand mediation, to assist their clients to understand the process, and then to represent them successfully at the actual mediation.

Conflict Dynamics offers lawyers a training course on how to represent their clients effectively in mediation.

Lawyers have an active role to play in the mediation process.  The training focusses on them developing an understanding of mediation in relation to the other dispute resolution processes and on the role of the lawyer in mediation.

A lawyer who attended the recent advocacy training course commented on how she now knows what to expect of the process and how to contribute to it in a way that benefits her clients.  The mediation process is a flexible yet structured one and understanding how the mediator works at each phase and stage of the process provides the lawyer with insight into how to make the most of the process.

Lawyers work with their clients to analyze the case, from the client’s own point of view and also from the point of view of the other party. An attorney on the recent advocacy course spoke of how he can see that his role actually expands with mediation. Not only will he focus on the legal merits, but he saw the value of exploring his clients’ interests more holistically. Another lawyer found the focus on creating value for clients rather than focusing on claiming value useful.  It was perfectly expressed by an attorney as mediation being “a mind shift from being matter-centric to be client-centric”.

Lawyers are also well placed to assist clients to assess the risk of not settling in the mediation. The costs of proceeding to litigation and the prospects of winning or losing in that forum need to be carefully weighed against the offers on the table in mediation. Lawyers are familiar with the litigation process and how much time, cost and risk are associated with pursuing a case.

Initially, it will be a challenge to convince clients and opponents to make full use of the mediation process, especially those who have not been in mediation before or who have not had positive previous experiences of mediating.  This course equips legal representatives with an understanding of the process, gives practical guidance on how to advise clients and then equips them to represent clients effectively during the mediation process.

- Marion Shaer