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"Nothing To Lose," Say Lawyers Attempting Pre-Litigation Mediation

22 Jan 2021 4:54 AM GMT
Nothing To Lose, Say Lawyers Attempting Pre-Litigation Mediation

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As the post-pandemic era dawns, CAMP Mediation is observing 2021 as the year of #CALM (Celebrating Advocates & Lawyers in Mediation). Often unaware and uncertain of their role in private mediation, lawyers and advocates, who haven't first-hand experienced the benefits of pre-litigation mediation could be missing out on opportunities to #settlesmart for their clients. Via a series of articles, the author aims to highlight the developing trends of private commercial mediation in India, through the lens of lawyers and advocates who have skilfully and strategically offered their legal counsel in a collaborative, yet competitive environment.

"There is nothing to lose in a pre-litigation mediation," says Adv. Rahul Dhawan, managing partner at Lex Chambers, sees more positives than negatives in exploring private mediation for his clients. "Firstly, it's not imposed on you. Your client gets to choose the mediator, the venue and the dates as per his or her convenience and comfort levels. Secondly, its informal nature, where the facts of the case are presented in a straightforward manner, makes work lighter. There is no one to impress and the focus clearly lies on the merits of the matter, without any procedural hurdles. Thirdly, I found it valuable to have a discussion and not an argument, as it allowed me to brainstorm creative options for my client – this is unavailable in an adversarial setting."

Lawyers who are skilled and capable to represent their client in a mediation are not apprehensive about hostility from the other end as they are mentally prepared to keep calm and stay in the role of a 'mediation counsel', even if the setting turns momentarily adversarial. "The biggest advantage of Mediation is that conversation/statements by Parties during mediation cannot be used against them in Court. This permits them to speak their mind without the fear of adverse consequences." says Adv. Sanjana Rao, senior associate at Crest Law Partners.

Now, this license for parties to express themselves emotionally in mediation can sometimes cause stormy sessions. Therefore, this freedom to speak and the opportunity to be heard comes with the responsibility to remain civil and maintain an amicable mood in the room – this can be preserved by lawyers with the mediator's guidance.

Grinding through an impasse with the mediator

A private mediator's neutral stance at the table, considering the mediator has neither a conflict of interest nor the burden of achieving a settlement, allows him / her to voice the most obvious facts and ask questions that lawyers, themselves, find difficult posing to their clients. "In the many mediations I have represented my clients, I have enjoyed the simplest things the best. The mediator's ability to understand both sides of the story and reframe perspectives constructively, without taking sides is what I appreciate the most," says Rahul.

Having participated in an online mediation with Rahul, his counterpart admits that they did have their tense moments, and the only thing that kept the mediation from falling apart was "conversation, conversation and more conversation". Sanjana elaborates further, "The only way to overcome an impasse in mediation is to keep the channel of communication open. However, it is equally important to know when to stop a conversation. Every time we hit a road-block or tempers flared, we would call it a day. Everyone would take a breather and resume again in a couple of hours or days. In Court/Arbitration, Parties speak only through their Advocates. Before a Mediator, the voice of the Parties is heard. In our case, the Mediator ensured our client was part of the dialogue through and through. This made them feel part of the decision-making process, which is very important".

Opening a window for settlement

Beyond the fact that the mediation helps lawyers fix issues for their clients quickly without any uncertain or hidden costs, Rahul sees the tremendous value in the exercise of reality testing with the assistance of the mediator. "Another reason why I would keep coming back to mediation with my clients is it acts as a valid filter prior to pursuing other alternatives. We might be exhausting all our ideas and options to resolve, but at least we get to know the other side's perspective better – even if the mediation doesn't end in a settlement," says Rahul.

Sanjana cautions that lawyers shouldn't treat the mediation process as a mere "formality" that they need to endure because it is mandated by the court or required by a contractual clause. "If attempted in good faith, they will be surprised at how much can be achieved before a mediator. The success one might or might not see after 4-5 years of trial may be achieved in a matter of months through mediation," she says, continuing to advise mediation to her clients, even if the chances to resolve seem bleak. Besides finding it a "professionally satisfying experience", she believes when parties opt to mediate, they give themselves a chance to "save a lot of time and energy" and hopefully "resolve disputes amicably and maintain good business relationships".

Prepping for mediation

Preparation for a mediation is "definitely different" to the groundwork prior to a litigation or arbitration hearing. "During mediation, you need to be ready for amicable discussions and not aggressive arguments. One needs to be fully aware of the client's requirements and ultimate goals during the discussions so that when offers and proposals are given, decisions can be taken keeping in mind the client's interests," says Sanjana. This shift in focus from the client's rights to the "client's best interests at stake" is also endorsed by Rahul, who prepares with the same intensity as he would for a court hearing. "The only difference is the agenda, the language and the strategy – all three being collaborative from the start to the end," he says.

Rahul emphasizes the "indispensable" role of the lawyer representing high net-worth clients, who neither have the time nor want to expose themselves to a mediation setting, where they may come across as vulnerable and weak. He says the lawyer plays a crucial role to filter out the ego and emotion before conveying offers and counter-offers. "Patience is key to successfully representing your client in a mediation. Lawyers must approach a mediation with the intention to assist their clients to meet somewhere between their extreme positions. We lawyers can be stubborn, and are often instigated to be stubborn when pressed by the other side, but a seasoned mediator is able to create opportunities to break the deadlock."

In our next column, we will discuss how representing a client in mediation can be a financially sustainable move for lawyers and advocates.

Jonathan Rodrigues is a Mediator at CAMP, cofounder at The PACT and a visiting faculty (MA) at MNLU Mumbai. He holds a LL.M. degree in Mediation & Conflict Resolution from the University of Strathclyde, UK. Views are personal. Your may contact the author at [email protected]

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