Every so often I meet a lawyer for coffee and discuss with him or her the virtues of mediation. I emphasise the timeliness and cost effectiveness and explain that invariably, mediation will be in the best interests of the client. In many instances I receive very favourable responses. Many of the lawyers I encounter are honourable, sensible, down to earth people and I can think of many instances where lawyers tell me that despite having been strongly advised to consider mediation, their clients firmly say no.
This scenario is not altogether uncommon but there have been some less positive solicitorial discussions. Some lawyers will refuse to entertain even the mention of mediation. Others who may be a little more candid have been known to tell me in confidence that they see mediation as a threat to their livelihoods.
Some, who are even more cynical, see mediation as an opportunity to make more money and seemingly use the process as some sort of dry run for the inevitable day or two or possibly month or two that will be spent in the courtroom. Such lawyers go about their business safe in the knowledge that although the higher courts issue dire warnings about disproportionate costs from time to time, these are not enshrined in the formal court rules and that unfortunately they can safely be honoured in the breach.
Will lawyers lose their livelihoods if more use is made of mediation and other forms of ADR?
The short and emphatic answer is “no”. Every so often, there will be media speculation about the demise of the legal profession because of one issue or another. However, although the legal profession may not always emerge unscathed from the various crises that beset it, nonetheless it survives and in reality, erudite and intelligent practitioners go on from strength to strength.
Mediation is not a substitute for the legal process. If a road traffic accident case involving personal injury goes to mediation, the mediator will endeavour to facilitate a resolution and clearly will not “advise” on such issues as quantum of damages. A mediator is not a substitute judge and at all junctures of the process, parties to a mediation will be reminded of this and advised to seek advice. In some instances, it will be perfectly legitimate for lawyers to attend mediations and particularly where there are complex issues to be considered, their input may be warmly welcomed. Mediators do not prepare cases in the sense of obtaining experts’ reports, collating evidence and giving legal advice. Increased use of mediation would not diminish such functions and lawyers would still expect to receive substantial fees for undertaking them.
Consider cases where the lawyers properly advise their clients that settlement is appropriate and that the outcome of a day in court cannot be accurately forecast. In such instances, not only can a mediation help the parties to concentrate and focus on what is important but if the process is successful (and around 90% all civil mediations are) then the lawyers can quite legitimately take the credit for some good, possibly even inspired advice.
Early stage mediation in particular results in cases being dealt with more quickly with faster turnover and therefore increased billing rates. Lawyers who advise mediation can quite legitimately state that they “get results”. Even the most vexatious of clients usually wants a timely outcome and, in many instances, they will see the lawyers who advise mediation as “successful dealmakers”. Legal reputations will be enhanced and it is entirely conceivable that satisfied clients will return and may instruct the same lawyers or their colleagues or associates to undertake other quite profitable work.
A cynical observer might note that difficult cases that are taking a disproportionate amount of lawyer time or are not economically viable could quite justifiably and fairly be addressed through mediation. The ASM PLUS Small Claims Mediation Service is a case in point. It offers a means for resolving modest value disputes that most lawyers will not even be prepared to contemplate although a lawyer to mediator referral in such an instance would constitute good service for which credit could be taken.
It is my firmly held view that there are many people who are disinclined to pursue what in many instances may be perfectly legitimate claims because of the time, trouble, bureaucracy, stress and expense that going to law so often entails. Lawyers should consistently and meaningfully refer to mediation. In so doing they would amply demonstrate to clients that there was a realistic prospect of their cases being resolved in a reasonable period of time at a fraction of the cost of full-blown court proceedings. This would undoubtedly encourage people to see progress and the chances are that lawyers would attract more clients.
Ultimately, at some point, mediation and other forms of ADR will become commonplace and whether they like it or not, lawyers in England and Wales and innumerable other jurisdictions will have to take it much more seriously. Why not embrace ADR now and demonstrate yourself as an innovator?
Principal Director of ASM PLUS, civil/commercial, workplace, employment, family and educational mediator and trainer with a judicial/legal background. He has knowledge and expertise in dispute resolution in a wide range of areas and disciplines and mediates online.