The Guide to Mediation for Lawyers deals with four key areas
- family mediation
- penal matters
- litigation alternatives between administrative authorities and individuals
- civil matters
The goal is the concrete implementation of mediation practice, with the help of practical tools.
The document was developed jointly with help from both the International Mediation Institute (IMI) and the Council of Bars and Law Societies of Europe (CCBE).
It defines mediation as voluntary and non-binding confidential dispute resolution, in which a neutral, independent person helps facilitate communication to help parties resolve their difficulties and reach an agreement.
The guide focuses on remedies for recurring problems such as identifying and understanding the client’s interest.
Its starting point is that the lawyer must be conceptually neutral and their selection of preferred options must be merit-based and objective.
Mediation can produce high-value and more creative or complex conflict solutions that may not be available through the potentially ‘alien and remote’ judicial process, the guide points out.
In an adversarial court setting, communication may be tactical and co-operation impeded, the guide continues. Another limitation of the adjudicative process is that questions of right or wrong may be irrelevant and fail to take account of the parties’ needs and interests, leading to a dead end.
In mediation, only the process is controlled by the mediator and the parties retain control of the outcome, giving more space for manoeuvre than in an adjudicative process.
The core CEPEJ principle is that each person should have access to justice, but justice does not always originate from the court. Therefore it believes that the legal profession should reflect an in-depth knowledge of all dispute resolution processes.
Mediation is effective because it gives disputing parties the opportunity to speak directly to each other and to be heard. But independent legal advice ensures that both parties can confidently enter into an informed dialogue and this helps to redress any power imbalance between parties.
In mediation, the focus is firmly on the parties’ future needs and interests, the guide says, and is based on an entirely different paradigm than adjudication.
Lawyers applying a co-operative and constructive approach in mediation can help guide parties to a solution which better reflects their real interests and needs.
CEPEJ points out in the document that lawyers are ethically and professionally committed to protect and realise their client’s best interest. This may sometimes be hard to define but become clearer though mediation.
The guide takes the lawyer through the steps for a thorough cost-benefit analysis of the available process options, including length, cost and risks. A lawyer may be present, or not, at the mediation but will prepare the client in either situation. A lawyer’s presence at mediation is optimal to assist at critical stages of the process, the guide says.
The training document examines examples of various mediation scenarios and the role of the lawyer in each case. The drafting process for any mediated agreement is usually the responsibility of the lawyer who was present throughout the process.
Article 6 of the 2008 Mediation Directive provides that Member States shall ensure the enforceability of agreements resulting from mediation.
The training document also details the steps for a lawyer to identify the best and most qualified mediator for the job.
The mediation process is usually ‘transformative’ for both parties, the document concludes.
It helps the parties to think realistically about their claims and interests and encourages them to act more reasonably towards the other side. As such it is preferable to litigation with its often-unpredictable results.
Lawyer-supported mediation can be enormously beneficial because it ensures that both parties have quality independent legal advice, are confident to enter into an informed dialogue, and it also helps to redress any power imbalance between parties.
“Mediation gives lawyers another opportunity to demonstrate their legal, analytical and managerial skills, whilst presenting themselves as true interpreters and representatives of clients’ interests and co-authors of their success,” the document concludes.
The toolkit can be accessed here: https://www.ccbe.eu/fileadmin/speciality_distribution/public/documents/ACCESS_TO_JUSTICE/ATJ_Guides_recommendations/EN_ATJ_20180627_Guide-to-Mediation-for-Lawyers.pdf