Representing your Client in Dispute Resolution Conference

An attorney representing or accompanying a client to a dispute resolution or mediation conference is no longer the warrior litigator fighting for his/her client's cause. Mediation is an attempt towards peace-making, whereby all the attorney's instincts and legal training in the art of persuasion (by means fair or foul) takes a back seat to even more subtle skills - supporting the client's autonomy and right to self-determination whilst at the same time educating his client, the mediator and the other party, as to the legal substance and legal impact without alienating and limiting anyone.

Wow, that's a lot of balancing going on. For those of us who have or have had teenage children, you will understand what that means. However, unlike parenting, these mediation counsel skills can be learnt. Here are the main concepts an attorney in mediation should master:

1.   Understanding your role and the conflict trap within which you and your client might remain stuck in. It is too easy to revert to the traditional adversarial structure and sticking to positions. As a lawyer, you should be mindful of your own motivations and frame of mind and understand that your sole motivation ought to be to help people in conflict resolve their disputes;

2.   Be fully prepared to discuss the legal substance of your client's case. This does not mean beating your chest and peppering the discussions with adverbs and adjectives such that it might polarize the other party, but it does mean cooly setting out the strengths as well as the risks of your client's legal situation. You should also be completely prepared and realistic enough to discuss the legal impact meaning the practical consequences of the litigation process;

3.   Step back and allow the client to discuss their own business or personal reality. This is the hardest part, because as lawyers you are naturally protective and would be afraid of the client divulging "too much". However, it is necessary to support the client's expression of painful emotions as it is necessary for the other party to understand it as well;

4.   Master the skills of active listening, looping and framing/re-framing of interests, creating options to relate to the interests and reality testing using objective criteria or standards. These skills will take a lot of work, and the best attorneys will spend a lot of time and go through many mediations before mastering this. As a great yoga guru once said

"Practise, practise, practise..and ALL is coming." (Sri K Pattabhi Jois)

5. Bargaining well to close the deal. This will be the subject of another blog, for numerous books have been written by so many experts in this fieldb. Briefly it's a little like fencing. You would know when to strategically advance, anchor, retreat, trade-off, ZOPAs (zones of possible agreement) and recognise and label difficult tactics, and have a few tools up your sleeve.

6. The last skill, ie understanding difficult people and difficult situation, is in my view pretty esoteric. Whilst it is not necessary for an attorney to learn this, it would be useful to be able to recognise when you come up against these instances. It leads you back one full circle, I guess, you'll have to know yourself very well before knowing others. Also the subject of a separate blog.

If you're a lawyer interested in learning mediation skills in Malaysia to better represent your client, check us out a mediate2resolveonline.com