The Role and Advantages of Mediation in Modern Legal Practice. It was Ambrose Bierce that wrote “Litigation: a machine which you go into as a pig and come out of as a sausage”. This quote can be amplified by Charles Mackling who said: “The law is a sort of hocus-pocus science, that smile in yer face while it picks yer pocket: and the glorious uncertainty of it is of mair use to the professors than the justice of it.”
As a litigation attorney practicing for more than six years, I can honestly say that the majority of my colleagues in the profession have come to grow accustom to summaries like this. We, as legal practitioners, are also not oblivious to the dramatic shortcomings in the process that we have to follow on a daily basis. We go through the motions to get justice for our clients and we follow the process that we have so vigorously been taught. We follow this process, not as a choice, but due to a lack of options. I clearly had the same perception until I attended the mediation training.
As legal practitioners we do get lectured on the concept of alternative dispute resolution. However the concepts are never fully explored by explaining the finer nuances that give life to the basic concepts. In exploring the concepts I suddenly saw the incredible void in the legal system – one that I did not even knew existed. This in turn made me identify numerous opportunities within our own legal practice.
As an attorney you may approach the law in a somewhat idealistic way. With ideals to fight for what is right and to protect the little people in the world. To seek the truth and to aid people in their pursuit for justice. However, once one fully enters the legal profession you soon realize that it is a business like any other with expenses, marketing and client satisfaction. However, it remains a grudge purchase - a purchase that most people dread and even fear. Despite this realisation, one’s idealistic approach remains at the back of ones mind and it is with these two concepts that I would approach the legal profession…justice and money. Unfortunately in most cases one would transpire at the cost of the other and in only a handful of matters the client would be able to see both at the same time.
As most departments within our firm would have some ties to the litigation department, I found it easy to see where mediation could be a great concept to implement. The transfer of a beautifully refurbished three bedroom house can, in an instant, become a leaky roof which the seller was “unaware of”. An antinuptual contract can become one of the key elements in a bitter divorce.
The wonderful thing about mediation is that one will be able to address any issue in dispute a lot faster in an attempt to ensure future dealings between the parties. The sale of a property does not need to be cancelled before a massive claim for damages is instituted. Parties will be able to discuss their differences with the opportunity to save a transaction that will in most cases be the benefit of both parties. Parties in a labour dispute will have the opportunity to avoid the CCMA completely and have the opportunity to remedy the employee / employer relationship.
Last-mentioned concept I found particularly appealing. It will seldom be that you would find two equally satisfied parties after the conclusion of a legal dispute. More often than not you may find no satisfied parties at all. Having the opportunity to have two satisfied parties after a professional service has been rendered to them (adjacent to a legal firm that I also represent) should do wonders for marketing. The practice may involuntarily be associated with relief and a positive service. Suddenly the concept of a “grudge purchase” becomes a lot more digestible.
One would also be able to tend to more parties needs. This will in turn lead to exposing more people to the firm and ultimately a higher flow of clientele due to marketing by word of mouth. Ultimately, helping to find a solution to people’s problems will also be an incredibly powerful marketing tool. This will be in line with the concept of giving parties a solution to their problem (which will also provide marketing opportunities) but with the added benefit of marketing to two parties instead of one.
It also dawned on me that I would be able to tend to more matters due to a much more fluent time constraint. Litigation can take months and even years. Attorneys would tend to litigation matters on a weekly basis with the possible relieve only being visible at the end of an emotionally draining legal battle with no guarantee of success. Mediation has the possibility of having a dispute settled in a matter of days or in many cases, hours. It would seem as if there is also movement in the legal industry from a procedural viewpoint in that magistrates and judges may now encourage mediation before allocating a trial date to a legal dispute. This opens up the door for more work for mediators which will ultimately lead to higher profits.
The other element in the legal profession that is unavoidable and one would have to consider, will be the concept of fees. Time spent should therefor pay the bills. Unfortunately that is not always the case as attorneys spend a lot of their time to manage cases as well as the rest of the business. In many instances you may also be confronted with a client who is unable to comply with his or her financial commitments to you. This becomes a volatile situation which places a major burden on your business, especially your cash flow. The concept of putting all your eggs in one basket comes to mind.
Mediation would allow you to tend to several cases within the same amount of time. Your liability is spread across a much broader base which in turn reduces risk and adds to the marketing element as explained earlier. The client(s) has much less of a financial burden to bare and the attorney has much less risk to contend with. This concept is in line with the basic trend and evolution of the legal practice - being able to do more work for less money. In his book “The Future of Law: Facing the Challenges of Information Technology”, Richard Susskind makes it clear that the world of the lawyer is changing and the lawyer has to change with it. The concept of mediation is a perfect tool for the modern lawyer to explore the new world and to adapt accordingly.
So where does it leave litigation attorneys? Out in the cold? By no means at all. There will always be a place for litigation. What mediation does however do is create a space where many disputes can be tended to. Disputes which could never be explored or considered due to a lack of financial means or the element of risk that was just too great for one or both of the parties.
The major challenge currently remains to get parties to move to this space. Mediation is a concept that has to be marketed and sold to not only the general public but to other attorneys in the industry. The public will only be able to understand concept of mediation and consider it as a viable option if they are properly informed and educated on the concept.
The public will approach an attorney for advice and to hand him or her a problem to solve. The concept of mediation is not the first option that springs to mind and yet in today’s day and age, it really should be. Attorneys are in the fortunate position of being able to speak with great authority on the aspect of disputes. We have to deal with conflict on a daily basis. Attorneys are therefore in a perfect space to educate the public on the concept of mediation. Joe soap will consider the proposal of mediation from an attorney with a lot more care and thought than reading the information on the third page of the Sunday Times.
Attorneys should also realise that they are in a very fortunate position to be educated in the law. This allows them, in a role as mediator, to identify even more possible solutions to parties in a dispute. Even though it is not a mediators role to advise the parties in how to solve the problem, having a legal education may help parties explore more solutions to the problem and to “stumble” on a ultimate solution a lot quicker.
With no pun intended, I would therefore view my role in Mediation in Motion as being an advocate for mediation. Bringing the concept of mediation to the people and forming part of a network that has the ultimate goal of uniting people and to help resolve disputes in a peaceful and less soul crushing way. We as attorneys have a duty to educate our colleagues to not only provide relief to the parties in dire need of peace but to also provide relief to our already overly burdened legal system.
We owe it to ourselves as legal practitioners to enter the era of the modern lawyer and to bring real justice to the people of this country. The type of justice that in many cases may not be quantifiable but more often than not bring inner peace to the parties that seek it.
In his poem “The Song of Hiaworth”, Henry Wadsworth Longfellow wrote the following: “Buried was the bloody hatchet; Buried was the dreadful war-club; Buried were all war-like weapons, And the war-cry was forgotten, Then was peace among the nations”
May I contribute, in my practice, to the peace among the nations by considering mediation as a first option instead of a last resort.