ROLE OF LAWYERS IN THE MEDIATION: AN ANALYSIS

SUBMITTED BY
NIDHI P GOPAN (180401420032)
ARCHANA BABU (180401420010)

COURSE - BBALLB

Under the supervision of:

Prof. VISHAL BABASAHEB RANAWARE

Date of Submission: 19.10.2022

ABSTRACT
The fundamental role of a lawyer at any time is that of a skilled adviser. In fact, the lawyer is
a well–informed champion of the client, advising on the law and procedure, articulating the
client’s views to others, and above all, always pursuing the client’s best interests. By and large,
the typical lawyer probably gives very little thought to the nature of the dispute or conflict in
his client’s case. Others are reluctant to advise the clients to seek alternative dispute resolution
(ADR) mechanisms such as mediation. This reluctance could stem from their unwillingness or
inability to appreciate the advantages of non–adversarial proceedings. Mediation is an
increasingly important part of legal practice with the institutionalisation of alternative or
appropriate dispute resolution in our legal system.

Mediation has been embraced by courts and may be part of pre-action requirements in some
jurisdictions. To paraphrase psychologist, Abraham Maslow, ‘if the primary tool you have is a
hammer, you tend to see every problem as a nail!’ However, there are some litigation lawyers
who see it as their duty to seek an early resolution of a dispute outside of the court system, and
to act in the best interests of their clients. Therefore, it follows that there is a role for lawyers
in mediation. In recent times, there has been much attention focussed on the role of lawyers in
the mediation process. Most lawyers are used to the requirements of their role in litigation, but
few have grasped the different, and subtler, application of that role in mediation.

The role of lawyers in mediation has become increasingly important as society views mediation
as an effective alternative dispute resolution mechanism to litigation. This paper attempts to
explore such a role in three phases of the mediation process – the pre–mediation, during the
mediation meeting, and post–mediation and the responsibilities of lawyers in the process. The
second part of the paper analyses the ethical, legal and regulatory concerns involved in the
participation of lawyers in the process of mediation. The later part of this paper discusses the
role of lawyers in the future of mediation – the common pressures against lawyers’ proper
involvement in mediation and what lies ahead.
 CHAPTER 1
INTRODUCTION
Peace is the most crucial component in human progress. There is always strife when
there is a man. It is a fact of life. What is more essential, though, is how we resolve the
issue. The effectiveness of the judiciary is critical to the success of a nation.
Unfortunately, our judiciary is currently overburdened with pending cases. . State
Policy Directive Principle Article 39 A of the Indian constitution states that no one will
be denied justice on the basis of physical or monetary incapacity. Article 21 guarantees
the right to life and personal liberty, which includes the right to a prompt trial. Even
though it is a basic right, enforcing it has become a legal problem. When faced with a
strict, expensive, and time-consuming legal system, litigants feel disoriented. Given the
condition of impoverished litigants, the legislature has enacted the finest system for
resolving disputes.

This technique is known as the 'Alternative Dispute Resolution' system. Section 89 was
included to the Civil Procedure Code when it was revised in 1999. Section 89 requires the court
to submit the issue to one of the modes of ADR, namely arbitration, mediation, conciliation,
court settlement – Lok Adalats, if there is an element of conflict resolution. Mediation is a
confidential, private process in which a neutral third-party guide disputing parties in a
constructive conversation—essentially an assisted negotiation.

The mediator helps the parties express their positions and proposals, listens thoughtfully to
each, clarifies issues in dispute, searches for solutions that address the needs of all and works
toward a fair, workable settlement to the dispute. The decision-makers are the parties
themselves. This characteristic, known as self-determination among professional mediators, is
what distinguishes mediation. Lawyers' roles in mediation have grown in importance as society
regards mediation as a viable alternative conflict resolution tool to litigation. With this in mind,
it is critical to examine the function of attorneys in the mediation process in order to shed light
on their duties and obligations in the process.
 CHAPTER 2

RESEARCH PROBLEM:

Although there was initially hesitation among legal practitioners to use alternative dispute
resolution techniques, it should be highlighted that attorneys today use ADR methods due to
the rising benefits and flexibility of ADR methods. According to current trends, attorneys are
involved as mediators in the process of mediation between their clients and opposing parties
with the goal of settling and resolving the conflict before resorting to the adjudication
procedure. Because litigation and mediation are two separate procedures with various
spectrums, it is necessary to examine the duties and obligations of legal practitioners as
mediators in the process of conflict resolution. It shall also be important to analyse the ethical
and regulatory considerations involved in the participation of lawyers in the process of
mediation with a view of making mediation a fruitful process of dispute resolution. The main
problem is that legal practitioners who profess litigation shall have certain ethical and
regulatory barriers in acting as neutral mediators in the process of dispute resolution.

SCOPE AND OBJECTIVE:

The scope of this paper is limited to analysing the importance, roles and responsibilities of
legal practitioners in the process of mediation which is an alternate to litigation. The scope of
this paper does not extend to analysing the specific roles and responsibilities of lawyers in
family or commercial mediation or analysing the guidelines by a specific country or state.

The primary objective of this paper is to analyse various literature and provide a conglomerated
view on the roles and responsibilities of lawyers in mediation. The secondary objective is to
analyse the ethical considerations involved in the participation of lawyers in mediation keeping
in mind that litigation and mediation are totally different methods of dispute resolution. The
objective of the paper is also to provide insights about what the future holds for mediation.

AIMS:

 To focus on why ADR namely, Mediation is becoming popular in the legal system
  To analyse the duties and obligations of lawyers in the whole process of Mediation
 To understand the ethical and regulatory concerns that attorneys must make during the
process
 To examine the future of Mediation

RESEARCH QUESTION:

1. Whether lawyers have a role to play in the process of mediation?

2. Whether the ethical and regulatory considerations involved in the participation of
lawyers in the process of mediation?

HYPOTHESIS:

Lawyers have their way in ADR in which mediation process has become increasingly important
as society views mediation as an effective alternative dispute resolution mechanism to
litigation.

REVIEW OF LITERATURE:

1. Christina SS Ooi, ‘The Role of Lawyers in Mediation: What the Future Holds’
(Malaysian Bar, 22 August 2005)
This paper analyses the key elements of mediation and the role of lawyers in three phases of
mediation process which is before the mediation, during the process of mediation and post
mediation. This article in detail analyses the role a lawyer shall play in the process of mediation.
This article also analyses the future of mediation and what the future holds and the importance
of mediation in dynamic dispute resolutions. The language of this article is easy to comprehend
and easily understandable by the beginners. In conclusion this piece of literature has played an
inevitable role in writing this paper as it provides deep insights about the role of lawyers in the
process of mediation.

2. Michael Lang, ‘From Advocate to Advisor, The Role of the Lawyer in Mediation’

The initial part of this literature analyses the advantages of mediation as compared to the other
forms of dispute resolution such as arbitration, litigation and conciliation. The later part of this
article analyses the role played by a legal practitioner in the process of mediation in three faces
that, that is remediation, during mediation and post mediation. The language of this article is
very simple and is viable for beginners and academics without any prior-knowledge about the
process of mediation. In conclusion This article was of a great help in writing this research
paper as it provided for a clear understanding about the process of mediation and the role played
by legal practitioners in the same.

3. Madhavi S Sarvade, ‘ADR Mechanism in India: Role of Legal Practitioners in

Mediation’

This article analyses the role of legal practitioners in the process of mediation with special
reference to the Indian framework. This article analyses section 89 and order 10 of the civil
procedure code 1908. The later part of this article analyses the role of advocates before, during
and after mediation in a detailed manner. This article also talks about the advantages of
mediation for advocates. In conclusion this article helped the authors of this paper by providing
insights about How Indian laws and Indian framework deal with the process of mediation
involving advocates and legal practitioners.

4. Archie Zarisk, ‘The New Old Lawyer: How Lawyers have Adapted to Mediation
to Preserve their Power, Income, and Identity’ (Asian Mediation Association
Conference, Kuala Lampur, February 2011)

This paper outlines the evolution of mediation in some common law jurisdictions from an idea
lawyers dismissed to a practise most now use. This article also analyses the future of those
jurisdictions where mediation is still struggling for an acceptance into practice. This paper is
written in a very commercial way in the sense it talks about the reasons why and how lawyers
have adopted to practise mediation in order to preserve their power identity and income. In
conclusion this article was of a great aid in writing this research paper as it provided insights
about the reasons why lawyers adopt mediation and what the future of mediation appears to be.

5. Kathy Douglas and Becky Batagol, ‘THE ROLE OF LAWYERS IN

MEDIATION: INSIGHTS FROM MEDIATORS AT VICTORIA’S CIVIL AND
ADMINISTRATIVE TRIBUNAL’ (2013) Vol 40 No 3 Monash University Law
Review 758

This article analyses as to how lawyers can contribute to the process of mediation by abiding
to the ethical requirements. This article provides insights into the role of lawyers in mediation
using interviews with 16 mediators at the Victorian civil and administrative Tribunal of
Victoria. This article explores collaborative approaches that lawyers can adopt within the
spectrum of rules that lawyers may take when representing a client in mediation. This paper is
different from other papers as it is written in our empirical way. In conclusion this paper
provided a deep insight about the role of lawyers and mediation from a practical point of view
Which in turn was very important in understanding the process of mediation.
 CHAPTER 3

RISING THREAT TO MEDIATION AS AN ALTERNATIVE

Courts have emphasized mediation to decrease court delays and costs.1 To accomplish these
objectives, jurisdictions have enacted compulsory mediation schemes, either by requiring
parties to pursue mediation or giving judges strong authority to command mediation. Courts
have used financial incentives to promote participant use of mediation as well. Opponents of
compulsory mediation claim that court connected mediation programs refer cases of less
importance to mediation, which often involve “minorities, the vulnerable and less powerful in
society.”2 Thus, opponents argue that mediation in court-connected contexts provides a lesser
form of justice to the parties.

Opponents of compulsory mediation also claim that mandatory mediation programs violate
European constitutional principles. In 2004, the English and Wales Court of Appeals in Halsey
v Milton Keynes General Trust NHS ruled that a mandatory mediation scheme violated the
citizens’ right to a fair trial codified in Article 6 of the European Convention of Human Rights.3
However, in 2010, the European Court of Justice in Alassini v. Telecom Italia SpA disagreed
with the Halsey court.4 The Alassini court concluded that mandatory mediation schemes were
constitutional under Article 6, but only if the programs do not result in binding rulings or
impose undue cost or delay. 5 Critics who claim mediation provides a lesser form of justice fail
to consider mediation’s trend towards evaluative approaches and mechanisms such as judge
approved settlements and advisory opinions. Mediation has also shown to have strong
procedural justice and high satisfaction rates of settlement compared to litigation.

Proponents and opponents of compulsory mediation also debate compulsory mediation’s effect
on procedural fairness. Opponents argue that mediators can have trouble adjusting their role
without showing bias when disproportionate party power distorts a mediation. 6 Lawyers

1
Nadja Alexander, ‘Mediation on Trial: Ten Verdicts on Court Related ADR’ (2004) 22 LAW CONTEXT 17.
2
Ronan Feehily, ‘THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS: A
CRITICAL ANALYSIS OF THE LEGAL AND REGULATORY ISSUES’ (2016) 133 The South African Law
Journal 351
3
Halsey v. Milton Keynes Gen. Trust NHS, [2004] 1 EWCA Civ 5761
4
Alassini v. Telecom Italia SpA, 2010 E.C.R. I-02213
5
ibid
6
Ronan Feehily, ‘THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS: A
CRITICAL ANALYSIS OF THE LEGAL AND REGULATORY ISSUES’ (2016) 133 The South African Law
Journal 351
representatives can dampen participants’ roles too, which may decrease the participants’ voice.
Mediators can remedy these problems associated with compulsory mediation by treating parties
with respect, disclosing the rules of conduct, providing both parties with adequate time to voice
their opinions, recommending parties to seek external advice and asking reality testing
questions. Lawyers representatives can also help by providing an aura of dignity to the
proceeding, improving a weaker party’s voice and enhancing settlement fairness. 7

Research shows that court connected mediation often focuses upon settlement and narrow,
legal-oriented norms. Furthermore, jurisdictions and courts often require court connected
mediation schemes to reflect their administrative goals. Thus, mediation purists may have a
difficult time implementing traditional mediation characteristics such as facilitative
frameworks and confidentiality stipulations. Policies that promote settlement and narrow,
legal-oriented norms improve justice and judicial efficiency, but decrease party satisfaction and
limit restorative justice. Thus, it has been recommended that courts should make a “conscious
attempt to appropriate mediation design” and avoid imposing all facets of litigation. 8

Future mediation development should allow lawyer participation but look to counteract
“dominant legal culture.”9 To do this, lawyers should emphasize humility, accept non-lawyer
mediator involvement, and seek mediation training and education to curb their adversarial
disposition. One of the major recommendations is that legal education to embed mediation in
the core legal curriculum and emphasize interdisciplinary subjects such as business,
psychology, sociology, and economics. Jurisdictions should also create programs to educate
nonlawyer mediators on pertinent legal matters, promulgate regulations that allow nonlawyer
involvement and create codes of conduct administered by non-legal bodies to eliminate
potential bias.

7
Kathy Douglas and Becky Batagol, ‘THE ROLE OF LAWYERS IN MEDIATION: INSIGHTS FROM
MEDIATORS AT VICTORIA’S CIVIL AND ADMINISTRATIVE TRIBUNAL’ (2013) Vol 40 No 3 Monash
University Law Review 758
8
Christina SS Ooi, ‘The Role of Lawyers in Mediation: What the Future Holds’ (Malaysian Bar, 22 August
2005) <https://www.malaysianbar.org.my/article/news/legal-and-general-news/legal-news/the-role-of-lawyers-
in-mediation-what-the-future-holds> accessed 16 November 2020
9
Madhavi S Sarvade, ‘ADR Mechanism in India: Role of Legal Practitioners in Mediation’ (Legal Service
India.com) <http://www.legalservicesindia.com/article/2382/Role-of-Legal-Practitioner-in-Mediation.html>
accessed on 16 November 2020
 CHAPTER 4

ROLES AND RESPONSIBILITIES

Where the lawyer represents the client

Here the lawyer will be confronted with determining what his role will be. He could advise the
client before and/or after the mediation, but not attend it himself, or he could attend but not
actively participate, or he could attend and actively participate. These options are distinct roles
which require different skills and a full and comprehensive understanding of the dynamics of
mediation.In representing the client in mediation, the lawyer’s basic duty, to act in the best
interests of the client, does not change. However, the lawyer has to understand that there are
differences in the way this duty can be effectively carried out.

Firstly, the lawyer must have regard to the fact that the client has chosen to resolve the dispute
in a consensual, that is, non–adjudicatory, manner. This means that the lawyer needs to
familiarise himself with the mediation process and to work within its rules and principles. 10

Secondly, the client has selected an approach which seems to have moved away from the
adversarial mode of practice. 11 Thirdly, the lawyer can still achieve results for the client in a
way which does not necessarily mean defeating the other party, but by seeking solutions which
are beneficial to all parties, as far as possible. 12

The main challenge facing the lawyer is how his legal advice to the client fits and interplays
into the mediation process. Hence, the role of the lawyer can best be appreciated in three phases
of the mediation process, namely:

 Phase One: Pre–Mediation;

 Phase Two: During Mediation; and

 Phase Three: Post–Mediation.

10
Christina SS Ooi, ‘The Role of Lawyers in Mediation: What the Future Holds’ (Malaysian Bar, 22 August
2005) <https://www.malaysianbar.org.my/article/news/legal-and-general-news/legal-news/the-role-of-lawyers-
in-mediation-what-the-future-holds> accessed 16 November 2020
11
ibid
12
ibid
A. Pre-Mediation

It is here that the lawyer must first take into consideration with the client in selecting the
mediation forum and the mediator, agreeing on the rules and procedures for the mediation and
preparing for the mediation, including dealing with the documentation and preliminary
exchange of information so that the dispute can be most effectively and appropriately addressed
from the following aspects:13

Is the dispute suitable for mediation?

The first part of the lawyer’s role is to ascertain which ADR mechanism is most appropriate
for the dispute, that is, ‘to fit the forum to the fuss’ as quoted by Professor Maurice Rosenberg. 14
Every case should be viewed on its own merits, and the ultimate decision should be based on
a spectrum of ADR mechanisms available, rather than a simple decision of whether it is
mediation or litigation.

The lawyer should be mindful of the trap of expecting a mediation to cure a bad case on the
merits.15 Educating the client about the process is an important phase in the preparation for
mediation. The lawyer is also required to explain the fundamental characteristics of mediation,
for example, its ‘without prejudice’ nature.

At the same time, the lawyer should also warn that each party will know more about each
other’s interests, aims and motivations as a result of the mediation. In the early stages of
mediation, parties should be encouraged to be flexible about their expectations of the terms of
the settlement.16

In essence, the role of the lawyer here is to remind the client that successful mediations are the
product of a compromised solution, and to encourage the client to have an open mind when
submitting to mediation. There is no ability to mediate in good faith unless the client is willing

13
Madhavi S Sarvade, ‘ADR Mechanism in India: Role of Legal Practitioners in Mediation’ (Legal Service
India.com) <http://www.legalservicesindia.com/article/2382/Role-of-Legal-Practitioner-in-Mediation.html>
accessed on 16 November 2020
14
Ronan Feehily, ‘THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS: A
CRITICAL ANALYSIS OF THE LEGAL AND REGULATORY ISSUES’ (2016) 133 The South African Law
Journal 351
15
D Golann, Seminar Notes: Lawyer’s Role in Mediation, CEDR, May 2000.
16
Christina SS Ooi, ‘The Role of Lawyers in Mediation: What the Future Holds’ (Malaysian Bar, 22 August
2005) <https://www.malaysianbar.org.my/article/news/legal-and-general-news/legal-news/the-role-of-lawyers-
in-mediation-what-the-future-holds> accessed 16 November 2020
to compromise. Hence the attitude of the parties is the overriding factor to determine whether
a matter is suitable for mediation.

Is the timing good for mediation?

Generally speaking, a dispute which has been referred to mediation at an early stage stands a
better chance of being resolved. If the parties wait for too long before they decide to mediate,
they may not be able to settle due to the amount of acrimony which has been generated, and
the costs which have been incurred. On the other hand, opting for mediation at an early stage
may have its drawbacks. The parties may need a cooling–off period before they decide that
they are ready for mediation.

Hence, the lawyer must be able to assess the situation and, thereafter, to advise his client
accordingly. 17

What kind of mediation is required?

The lawyer must advise the client on the many types of mediation available, and which of these
types are suitable for the dispute at hand. It is a question of whether to use facilitative mediation
– where the mediator tries to facilitate the settlement based on the parties’ interests and needs
rather than their rights, and will not express any views as to the merits of the issues but to leave
it to the parties to obtain these views from the parties’ respective advisers; or to use evaluation
mediation – where the mediator provides formal evaluation to both or all of the parties, or an
informal evaluation to either, both or all of the parties; or to use therapeutic mediation if the
case involves family disputes. It is also important to consider whether the mediator will be
willing to consider making settlement recommendations. 18

Does the mediator need to be an expert?

It is important to have a mediator who is an expert in the mediation process. However, if there
is a choice to be made between process expertise and expertise in the subject matter of the
dispute, then the process expertise will prevail. Based on the lawyer’s advice, it is also possible

17
Ronan Feehily, ‘THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS: A
CRITICAL ANALYSIS OF THE LEGAL AND REGULATORY ISSUES’ (2016) 133 The South African Law
Journal 351
18
Kathy Douglas and Becky Batagol, ‘THE ROLE OF LAWYERS IN MEDIATION: INSIGHTS FROM
MEDIATORS AT VICTORIA’S CIVIL AND ADMINISTRATIVE TRIBUNAL’ (2013) Vol 40 No 3 Monash
University Law Review 758
to engage a mediator who has expertise in the subject matter of the dispute as well as process
expertise, if evaluation mediation is preferred by the client. Further, the client has to be made
aware by the lawyer that mediation process expertise in one field may not necessarily indicate
expertise in another field.

Whether a preliminary meeting is held

In some situations where the mediator may hold a preliminary meeting with the lawyer, the
lawyer plays a key role at this stage.

Firstly, such a meeting allows the lawyer to form a preliminary view about appointing the
mediator to deal with the case, if this decision has not yet been made by the client.

Secondly, the lawyer could take this opportunity to discuss and agree with the mediator the
procedural aspects such as preparing and submitting the parties’ statements and bundle of
documents, and the mediation schedule.

Thirdly, if the case concerns commercial or civil issues, the lawyer will be able to obtain a brief
outline of the kind and length of the presentation expected of him. He would be able to make
preparations ahead of time. Lastly, the lawyer could advise the mediator on the preliminary
sense of the issues in question and to outline any relevant personal or business considerations. 19

According to Michael Noone,20 at the outset, the lawyer’s role is a consultative one which is
quite different from the combative role in adversarial proceedings. It is always the parties who
control the content and occupy the spotlight at the centre of the mediation stage where the
parties become the primary negotiators in mediation. Essentially, before mediation, the role of
the lawyer involves the following tasks, namely21:

 To thoroughly prepare to be a good legal consultant at the mediation. This involves

knowing the client’s case as well as it would be known for a courtroom trial, includes
working out a tentative settlement range and gathering any detailed information about the
case and about costs which may need to be consulted upon in working out an agreement.

19
Ronan Feehily, ‘THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS: A
CRITICAL ANALYSIS OF THE LEGAL AND REGULATORY ISSUES’ (2016) 133 The South African Law
Journal 351
20
Noone, Michael, Mediation, Cavendish Publishing, London, 1996.
21
Kathy Douglas and Becky Batagol, ‘THE ROLE OF LAWYERS IN MEDIATION: INSIGHTS FROM
MEDIATORS AT VICTORIA’S CIVIL AND ADMINISTRATIVE TRIBUNAL’ (2013) Vol 40 No 3 Monash
University Law Review 758
 To advise the client comprehensively about how mediation works and to encourage the
client to fully participate in the process. This includes planning how to best prepare by
discussing realistic alternative negotiating strategies, which the client may or may not
decide to adopt.22

 To discuss with the client what aspects of the case should or should not be disclosed to the
other side and to the mediator in private session. 23 The client should be made aware that
the chances for a successful mediation are optimised if he is frank in private session with
the mediator and does not withhold any important information. The lawyer also bears the
responsibility to explain to his client the legal limits of confidentiality in mediation.

B. During Mediation

It is in this phase that we see lawyers and mediators play very different, yet complementary,
roles in the mediation process. The mediator facilitates negotiations while the lawyer offers
specific legal advice and counsel. Generally, during the mediation meeting, the role of the
lawyer would cover the following areas, namely24:

 To allow the mediator to conduct the process and to provide support to the mediator where
appropriate.

 To acknowledge the validity of the other party’s real needs in settlement.

 To permit and encourage the client to participate fully and directly in the process.

 To focus the client upon the future, rather than upon the past, and on their real personal and
commercial interests, as opposed to their legal rights.

 To assist the client to communicate accurately and comprehensively and to negotiate

constructively and productively.

22
Ronan Feehily, ‘THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS: A
CRITICAL ANALYSIS OF THE LEGAL AND REGULATORY ISSUES’ (2016) 133 The South African Law
Journal 351
23
Michael Lang, ‘From Advocate to Advisor: The Role of the Lawyer in Mediation’ (Mediate.com, October
2010) <https://www.mediate.com/articles/langlawyerrole.cfm> accessed on 16 November 2020
24
Christina SS Ooi, ‘The Role of Lawyers in Mediation: What the Future Holds’ (Malaysian Bar, 22 August
2005) <https://www.malaysianbar.org.my/article/news/legal-and-general-news/legal-news/the-role-of-lawyers-
in-mediation-what-the-future-holds> accessed 16 November 2020
 To participate in the generation of new ideas and options for settlement, giving ongoing
realistic predictions about likely outcomes in court or other non–mediation processes and
their relative advantage or disadvantages.

 To assist with the drafting of the terms of settlement, and the formalisation of the mediation
in appropriate ways.

Specifically, the role of the lawyer can best be seen in each of the following aspects during the
mediation meeting.

Presentation of the case

It is a safe assumption that, where the client is represented by a lawyer, the task of presentation
of the case usually falls to the lawyer, though this practice is not highly encouraged as parties
are empowered to present their original versions of the dispute.25 If at all, the lawyer is required
to present the case, he must focus his presentation to the other party or parties, and not to the
mediator, who is a neutral in the mediation meeting. This is quite unlike the adjudicatory
process where the lawyer would aim his presentation to the judge or adjudicator who has the
power of making decisions. 26

This shift in approach, from an adjudicatory process, means that the lawyer, while addressing
the mediator, will have a more complex agenda. He must present the argument in such a way
that it is persuasive but not aggressively contentious. The aim is not only to persuade the
mediator of the rightness of the case, but also to raise sufficient doubts in the mind of the other
party to create a climate for negotiations in which the other party will consider making
reasonable concessions. 27

In short, the approach used by the lawyer to the presentations should be to concentrate on the
main issues and not to diffuse energy, time or attention in dealing with peripheral issues or
technical procedural points, which can be reserved if considered appropriate.

25
Madhavi S Sarvade, ‘ADR Mechanism in India: Role of Legal Practitioners in Mediation’ (Legal Service
India.com) <http://www.legalservicesindia.com/article/2382/Role-of-Legal-Practitioner-in-Mediation.html>
accessed on 16 November 2020
26
Ronan Feehily, ‘THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS: A
CRITICAL ANALYSIS OF THE LEGAL AND REGULATORY ISSUES’ (2016) 133 The South African Law
Journal 351
27
Kathy Douglas and Becky Batagol, ‘THE ROLE OF LAWYERS IN MEDIATION: INSIGHTS FROM
MEDIATORS AT VICTORIA’S CIVIL AND ADMINISTRATIVE TRIBUNAL’ (2013) Vol 40 No 3 Monash
University Law Review 758
Negotiating and communicating

A key element in successful negotiation is for the lawyer to have an understanding of, and
respect for, the client’s position, concerns and interests, and for the client to trust the lawyer
sufficiently. The lawyer will need to be fully prepared for the mediation by analysing the case,
understanding its strengths and weaknesses, and expressing a frank and honest opinion to the
client.28

What is important is for the lawyer to be able to identify the client’s aims and concerns and try
to achieve the best realistic results from the mediation meeting. What is equally important is
for the lawyer to understand the other party’s interests and issues. Fisher and Ury29 offer two
suggestions:

 Ask why. The lawyer has to put himself in the other party’s shoes and ask why he or she
would be taking a particular negotiating position. What could be the desires, concerns,
fears, hopes behind it?

 Ask why not. Again, the lawyer has to put himself in the other party’s shoes and ask why
he or she has not embraced his client’s negotiating position. What desires, concerns, fears,
hopes are precluding it? Are they legitimate? If not, what can the lawyer do or say to help
the other party see that they are not legitimate? If they are legitimate, what can the lawyer
advise his client to modify the negotiating position so that the other party’s needs and
interests can be better satisfied?30

During negotiation, the lawyer should not bargain on the basis of ‘bottom lines’ or ‘final
offers’. Such positional bargaining does not necessarily produce the best results as sometimes
it may be difficult to move away from such positions taken. Instead, parties may prefer to
engage in principled negotiation which aims for a fair outcome using objective criteria.31

Hence, the lawyer, as negotiator, is likely to have a negotiation strategy. The lawyer will know
what the client’s expectations are, what the other party’s expectations are likely to be, how the

28
Michael Lang, ‘From Advocate to Advisor: The Role of the Lawyer in Mediation’ (Mediate.com, October
2010) <https://www.mediate.com/articles/langlawyerrole.cfm> accessed on 16 November 2020
29
Ed, Fisher, Ury & Patton, Getting to Yes: Negotiating Agreement Without Giving In, 1981.
30
Ronan Feehily, ‘THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS: A
CRITICAL ANALYSIS OF THE LEGAL AND REGULATORY ISSUES’ (2016) 133 The South African Law
Journal 351
31
Ed, Fisher, Ury & Patton, Getting to Yes: Negotiating Agreement Without Giving In, 1981.
next move may be envisaged, at what point the discussions should be called off, and generally,
at what pace, and in what direction, the negotiation should move. 32

The lawyer should be aware of the problem–solving approach and should be willing to consider
constructively, with the client, any approaches that would enable all parties to gain an
advantage from a suggested outcome. When considering making settlement proposals, the
lawyer and the client should examine these from the vantage point of all parties, and not just
their own. A constructive and creative approach does not need to be at the expense of the
client’s best interests, and a problem–solving method can be mutually beneficial.The lawyer
and the client should test the workability of the suggested options by engaging in assessing the
Best Alternative to a Negotiated Agreement (BATNA) or the Worst Alternative to a Negotiated
Settlement (WATNA) or the Most Likely Alternative to a Negotiated Agreement
(MLATNA). 33

The lawyer should advise the client’s alternatives insofar as their BATNAs, WATNAs and
MLATNAs should the mediation be called off or discontinued. In the event that the mediation
is terminated, the lawyer should advise the client the likely outcome of adjudication. If the
assessment points to a favourable outcome in adjudication, then the lawyer would advise the
client to terminate mediation and abandon the negotiation process.

Lawyer’s role in family mediation

In family mediation, after the lawyer has given preliminary advice to the client, and the client
has gone off to family mediation, there is likely to be a period of silence while the mediation
takes place. Family mediation takes place with the couple directly, and the lawyer does not
have a participatory role during this phase. 34In the early days of mediation, it was unclear what
the lawyer’s role might be while the client was engaged in mediation. The lawyer needs to
understand that family mediation involves an element of personal empowerment of the parties
by working with them individually and without constant recourse to their professional advisers.

32
Christina SS Ooi, ‘The Role of Lawyers in Mediation: What the Future Holds’ (Malaysian Bar, 22 August
2005) <https://www.malaysianbar.org.my/article/news/legal-and-general-news/legal-news/the-role-of-lawyers-
in-mediation-what-the-future-holds> accessed 16 November 2020
33
Supra note 14
34
Kathy Douglas and Becky Batagol, ‘THE ROLE OF LAWYERS IN MEDIATION: INSIGHTS FROM
MEDIATORS AT VICTORIA’S CIVIL AND ADMINISTRATIVE TRIBUNAL’ (2013) Vol 40 No 3 Monash
University Law Review 758
On the other hand, the client may not be choosing mediation in order to empower themselves,
but rather to achieve the resolution of their issues in a fair, effective and expeditious way. 35
The client may still wish to be supported by the lawyer through the process. In this case, the
lawyer has a duty to support the client in achieving this and should be available to advise and
support the client through the mediation process.Some mediators may recommend to the parties
that both should get independent legal advice at certain points during the process, especially
on important points such as a general indication of the position before embarking on mediation,
and to consider whether mediation is appropriate.

The lawyer may be invited to attend mediation meetings though this is unusual and generally
occurs only in an impasse between the parties, or where the lawyer has advised at the end of a
mediation, which proposed terms are unacceptable. In such an event, the lawyer should check
with the mediator as to what is expected of him at the mediation meeting. A short, non–
contentious presentation might be required, or the lawyer might be invited to support the client
without having a dominant role.

C. Post-Mediation

At the end of the mediation meeting, if total or partial resolution is achieved, the role of the
lawyer is to ensure that some record of the terms will have to be prepared, that is, finalising
and formalising any settlement arrived at. This is the Mediation / Settlement Agreement which
the lawyer must draft with care and precision to ensure that there will be no misunderstanding
amongst the parties as to the terms of the settlement.The lawyer has the responsibility to
reassure the client who has second thoughts, advising them of the options in dealing with
problems in the implementation of the agreement, including through a return to mediation. The
client must also be assured that confidentiality of the mediation meeting is maintained at all
times. 36

In summary, the lawyer plays an integral role in mediation. The lawyer is central in deciding
the strategy and tactics for mediation. The lawyer eases communication between both the client
and the mediator, and the client and the other party. This communication works both ways in
that the lawyer helps to support the client and interpret the case to the other party, as well as to

35
Michael Lang, ‘From Advocate to Advisor: The Role of the Lawyer in Mediation’ (Mediate.com, October
2010) <https://www.mediate.com/articles/langlawyerrole.cfm> accessed on 16 November 2020
36
Kathy Douglas and Becky Batagol, ‘THE ROLE OF LAWYERS IN MEDIATION: INSIGHTS FROM
MEDIATORS AT VICTORIA’S CIVIL AND ADMINISTRATIVE TRIBUNAL’ (2013) Vol 40 No 3 Monash
University Law Review 758
interpret the mediator’s comments and questions to the client. Lastly, the lawyer will be
important in dealing with legal and procedural issues, including in drawing up the Mediation /
Settlement Agreement.

Lawyer’s role in family mediation

One of the principles of family mediation is that parties will have the opportunity before
finalising any Mediation Agreement to obtain independent advice from their respective lawyers
about the acceptability of the proposed terms. Where the lawyer has been involved in the
mediation from an early stage, the proposed terms should not be a surprise, and the lawyer
should be able to advise on them without difficulty. On the other hand, it is more difficult for
a lawyer who has had little or no role in advising the client during the mediation, to endorse
the settlement terms. This can be seen from two aspects.37

Firstly, the lawyer has not had the benefit of working through the process and understanding
the reasons for the terms having been arrived at. Secondly, the lawyer has the legal
responsibility for the terms, and may be liable in negligence if he allows the client to enter into
a settlement on disadvantageous terms. 38

In essence, the whole point of deferring the finalisation of these agreements, to allow parties to
seek independent advice, is to give them a genuine opportunity to review their proposals.
Having the lawyer vet through the proposed terms is the safeguard built into the family
mediation process. Hence, the lawyer should not shy away from challenging terms when they
are inappropriate. Equally, the lawyer should support the client who has gone through an
arduous process and who has arrived at the accepted terms.

Where the lawyer is the mediator

The lawyer may find himself functioning as the mediator himself. ‘If he acts as a formal
mediator in a dispute not involving present or past clients, there are few professional problems.

37
Michael Lang, ‘From Advocate to Advisor: The Role of the Lawyer in Mediation’ (Mediate.com, October
2010) <https://www.mediate.com/articles/langlawyerrole.cfm> accessed on 16 November 2020
38
Ronan Feehily, ‘THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS: A
CRITICAL ANALYSIS OF THE LEGAL AND REGULATORY ISSUES’ (2016) 133 The South African Law
Journal 351
He is required to clearly differentiate his role as a lawyer from that of a mediator.’39 As a
mediator, he is not to give legal advice. As long as the roles are kept separate, the lawyer may
act as a mediator. However, the lawyer may find himself in a difficult situation where he seeks
to mediate in a dispute which involves one of his clients. 40 The issue of ethics then arises.

39
Ed, Fisher, Ury & Patton, Getting to Yes: Negotiating Agreement Without Giving In, 1981
40
Michael Lang, ‘From Advocate to Advisor: The Role of the Lawyer in Mediation’ (Mediate.com, October
2010) <https://www.mediate.com/articles/langlawyerrole.cfm> accessed on 16 November 2020
 CHAPTER 5

ETHICAL AND REGULATORY CONSIDERATIONS

If we look at various fields of law and its different types of jurisdiction, we will always find
one common element which is code of conduct through which all judges are bound in some or
the other way. Take for instance the role of an arbitrator, who is also a private judge and this
itself underlines the necessity of rules or a binding code of conduct. While the legal duties of
lawyers in relation to mediation have not been comprehensively determined in India, in light
of the discussion above, it would seem to make commercial sense for a lawyer to recommend
mediation in appropriate cases. The position seems to be that there is a duty to inform clients
about the settlement option even where the attorney believes the offer should be rejected.
Where a client’s case can be reasonably settled, clients should be advised and encouraged to
settle rather than to commence or continue proceedings. There is currently no formal duty on
lawyers to advise on mediation as a means of settlement.

The American Bar Association (‘ABA’) Model Rules of Professional Conduct (the ‘Model
Rules’), are a set of rules that prescribe baseline standards of legal ethics and professional
responsibility for lawyers in the USA. Originally published in 1983, the rules are merely
recommendations or models and are not themselves binding. However, having a common set
of Model Rules facilitates a common discourse on legal ethics and simplifies professional
responsibility training as well as the day-to-day application of such rules. To date, California
is the only state in the USA that does not have professional conduct rules that follow the format
of the Model Rules. The Preamble to the Model Rules notes the various functions that an
attorney assumes. These functions include the obligation as an advocate to ‘zealously [assert]
the client’s position under the rules of the adversary system’, as well as the lawyer’s duty as a
negotiator to seek ‘a result advantageous to the client but consistent with requirements of
honest dealing with others’. The acknowledgement within the Model Rules of the multiple
roles that an attorney performs supports the proposition that the Model Rules are intended to
apply to lawyers representing clients in mediation as well as in adversarial settings.
 CHAPTER 6

FUTURE OF MEDIATION

In today’s environment, most lawyers neither understand nor perform mediation to a great
extent, nor do they seem to have a keen interest in this area. To a great extent, lawyers are
bound by the ‘lawyer’s philosophical map’ where the lawyer makes two wrong assumptions,
namely, that all disputants are adversaries: where one party wins, the other party must lose; and
that disputes must be resolved by a third party through an application of some general principle
of law.

These two assumptions are total opposites of what mediation is all about. It is unfortunate that
lawyers use this ‘map’ to navigate themselves in their journey through the world of the legal
profession.

It is certainly undeniable that the legal education process and content today have, to a great
extent, moulded the mindsets and souls of lawyers to practise the adversarial system of Act–
oriented rules. In short, our legal education has institutionalised and instilled this ‘battle of
wits’ mentality amongst lawyers.

Based on all that has been discussed above, there is a great need for the role of lawyers in
mediation to be enhanced for the future of mediation. The challenge facing the legal profession
today is to continue to promote mediation as an ADR mechanism and to deliver the highest
standard of service in this area. It is not only for the benefit of the client, but also to enhance
the reputation of the lawyer as dispute resolvers in today’s society. 41

In a nutshell, it is the opinion that this challenge could well be overcome if two key areas are
addressed, namely, the attitudes and mindsets of lawyers today, and the extent of their
involvement in the processes of mediation. 42

In re–moulding the attitudes and mindsets of lawyers to view mediation in a positive light, the
key lies in mediation education. It is a fact that lawyers have never been educated in mediation

41
Kathy Douglas and Becky Batagol, ‘THE ROLE OF LAWYERS IN MEDIATION: INSIGHTS FROM
MEDIATORS AT VICTORIA’S CIVIL AND ADMINISTRATIVE TRIBUNAL’ (2013) Vol 40 No 3 Monash
University Law Review 758
42
Ibid
nor trained in mediation skills in law school. Until today, they have had little or no opportunity
to do so.43

The situation in America is starting to improve. There have been mediation workshops and
programmes which offer training to lawyers such as by the Family Mediation Association’s
five–day program around the US, and the Centre for the Development of Mediation in
Law which organises workshops designed primarily for lawyers.

There have also been increasing efforts at heightening awareness of non–adversarial

perspectives of the law in the legal curricula of Harvard Law School under the Harvard Law
School’s Fellowship in Law and Humanities Program and at Columbia Law School where
human dimensions such as interviewing and counselling, human relations training, planning
and negotiation have been taught alongside the more traditional law subjects. 44

Therefore, it is recommended mediation be made an optional / a compulsory subject in the

legal education curriculum for all undergraduate law students before they embark into the
world of the legal profession, as well as to postgraduate law students in their continuing legal
education. Such a curriculum should be governed, and strongly supported, by the Bar Council
as well as by the respective Law Faculties in our institutes of higher learning. 45

But then again, even if this is strictly practised, the role of the BCI remains crucial insofar as
to how mediation can be promoted. Needless to say, the true and correct messages about
mediation must be communicated effectively to lawyers – that mediation is not an alternative
to speed up the litigation process in the backlog of court cases, nor should mediation be seen
in the light of being the solution to cases which command low legal fees! 46

Besides the BCI, there are other professional bodies which have also started to take a lead in
this regard. Amongst those include People’s Mediation Society (PMS) in partnership with

43
Madhavi S Sarvade, ‘ADR Mechanism in India: Role of Legal Practitioners in Mediation’ (Legal Service
India.com) <http://www.legalservicesindia.com/article/2382/Role-of-Legal-Practitioner-in-Mediation.html>
accessed on 16 November 2020
44
Ronan Feehily, ‘THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS: A
CRITICAL ANALYSIS OF THE LEGAL AND REGULATORY ISSUES’ (2016) 133 The South African Law
Journal 351
45
Madhavi S Sarvade, ‘ADR Mechanism in India: Role of Legal Practitioners in Mediation’ (Legal Service
India.com) <http://www.legalservicesindia.com/article/2382/Role-of-Legal-Practitioner-in-Mediation.html>
accessed on 16 November 2020
46
Kathy Douglas and Becky Batagol, ‘THE ROLE OF LAWYERS IN MEDIATION: INSIGHTS FROM
MEDIATORS AT VICTORIA’S CIVIL AND ADMINISTRATIVE TRIBUNAL’ (2013) Vol 40 No 3 Monash
University Law Review 758
Indian Institute of Arbitration & Mediation (IIAM), which is one of the pioneer institutions in
India promoting and administering mediation in India.

Hence, mediation education for lawyers is truly essential if we wish to make the best of
mediation for our society. But what is mediation education without hands–on mediation
practice and mediation experience? This leads to the second point, the extent of the
involvement of lawyers where an expansion of the lawyer’s knowledge about mediation itself
is not sufficient. The second ingredient completes it all.

For effective practice of mediation, lawyers must begin to function explicitly as mediators. As
we have seen in the preceding sections of this discussion, the role of a lawyer is very different
in cases where the lawyer is himself a mediator. Clients view lawyers as their source of help
and advice in achieving, protecting or perfecting their rights. Hence, to most clients, lawyers
will remain as the initial consultants in processing their disputes, and in some cases, the lawyers
will take control over how these disputes are handled.

It is strongly pointed out that if more lawyers are able, and willing to serve as mediators, clients
and cases which are suitable for mediation will have a better chance of getting access to
mediation. Some cases may be mediated because the disputants would choose a lawyer
mediator, whilst others because the clients may chance upon a lawyer who mediates. Yet there
may be others, referred to mediation by lawyers who feel confident in playing their role as law–
trained mediators, using their combined skills of mediation and law as compared to just playing
the role of a traditional lawyer.

In essence, the lawyer who has experienced the mediation perspective would be more open to
acknowledge the serious difficulties in the current adversarial system. The mediation
experience would also encourage the lawyer to ‘think out of the box’ to come up with
breakthrough thinking solutions in the best interests of the clients. 47

The lawyer would also be able to break out from his conventional and traditional mindset. For
all intents and purposes, this ‘break out’ would lead to not just mediation but to legal services
which are more responsive to the needs and interests of clients specifically, and of society in
general.

47
Ronan Feehily, ‘THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION PROCESS: A
CRITICAL ANALYSIS OF THE LEGAL AND REGULATORY ISSUES’ (2016) 133 The South African Law
Journal 351
In fact, certain areas of the law have moved significantly in this direction, of taking the ‘middle
road’, shifting away from the strict adversarial ‘winner takes it all’ approach. Distinct examples
could again be cited in cases involving divorce, or where a number of state jurisdictions now
have statutes requiring conciliation attempts for certain kinds of issues before proceeding to
litigation.48

48
Michael Lang, ‘From Advocate to Advisor: The Role of the Lawyer in Mediation’ (Mediate.com, October
2010) <https://www.mediate.com/articles/langlawyerrole.cfm> accessed on 16 November 2020
 CHAPTER 7

CONCLUSION

The ideal conflict settlement method is the Alternative Dispute Resolution system. Prior to a
few years ago, ADR was seen as a client-initiated act. However, it gained legal legitimacy after
1999 through the Code of Civil Procedure Amendment Act of 1999, the Arbitration and
Conciliation Act of 1996, the Legal Service Authorities Act of 1987, and the Legal Service
Authorities Amendment Act of 2002. The word ‘Alternative’ denotes the mechanism which is
alternative to conventional method for resolution of dispute outside the court. Mediation is one
of the modes of ADR. Mediation is negotiated settlement with assistance of third neutral party.
It is the best method of resolving dispute as it saves money, time and relationships from spoiling
for forever. It benefits not only to clients but also advocates. Advocates should not think
negatively about this system. If an advocate assists his client during the process of mediation
and settlement happens. It can give him positive publicity which is actually very important for
his profession. He can give more time to other complicated cases. Mediation doesn’t violate
advocate’s right to livelihood. It is up to advocate to decide the fees for consultation for
mediation process for making the mediation brief etc. It is the best mode of dispute resolution
and can proved to be helpful for enforcement of fundamental right i.e Right to life and personal
liberty which includes within its ambit right to speedy trial. Article 39 A which speaks that
justice shall not be denied to any person on the basis of any inability whether physical or
monetary. It is the State Policy Directive Principle. Articles 21 and 39 A can be best
implemented through ADR. The motivation for implementing Section 89 of Order X of the
Civil Procedure Code is good, but it will not succeed until and until all legal practitioners and
society at large think positively about it.
 BIBLIOGRAPHY

JOURNALS:

 ‘THE ROLE OF THE LAWYER IN THE COMMERCIAL MEDIATION

PROCESS: A CRITICAL ANALYSIS OF THE LEGAL AND REGULATORY
ISSUES’ (2016)- The South African Law Journal
 Archie Zarisk, ‘The New Old Lawyer: How Lawyers have Adapted to Mediation to
Preserve their Power, Income, and Identity’ (Asian Mediation Association
Conference, Kuala Lampur, February 2011)
 Kathy Douglas and Becky Batagol, ‘THE ROLE OF LAWYERS IN MEDIATION:
INSIGHTS FROM MEDIATORS AT VICTORIA’S CIVIL AND
ADMINISTRATIVE TRIBUNAL’ (2013) Vol 40 No 3 Monash University Law
Review 758
 Dwight Golann, ‘MEDIATION ADVOCACY THE ROLE OF LAWYERS IN
MEDIATION’ (Lawyers in ADR, 2013)

WEBSITES:

 https://www.malaysianbar.org.my/article/news/legal-and-general-news/legal-
news/the-role-of-lawyers-in-mediation-what-the-future-holds
 https://www.mediate.com/articles/langlawyerrole.cfm
 http://www.legalservicesindia.com/article/2382/Role-of-Legal-Practitioner-in-
Mediation.html