Why Litigate When You can Mediate – Part 2


Keys to a successful mediation

Often a successful mediation is the outcome of the proper management of the mediation process by the lawyers. A lawyer plays a substantial role in providing proper advice to client, providing a comprehensive brief to the mediator, acting in good faith before and during the mediation and when all parties come to an agreement formulating an offer of settlement. To achieve a successful outcome your lawyer will commence the process of mediation way before the day of mediation.

A lawyer’s primary task in respect of the client is to prepare the client for the mediation. This is a process that requires proper advice to the client in relation to the issues of risk analysis, the best interests of the client, the nature of mediation, the strategies to be implemented in relation to the mediation and the reasonable outcome that the mediation may bring for the client.

The lawyer should help the client understand that the nature of the mediation is not adversarial. The mediation is in fact an exercise to resolve the parties’ dispute amicably, expeditiously and with minimum costs incurred.

The lawyer must also prepare the mediator. It is extremely helpful when the mediator appointed is familiar with the subject of the dispute. The mediator’s skill and experience along with any other required qualification depending on the subject of the mediation should all be considered at the time of appointing a suitable mediator. The mediator should then be properly and comprehensively briefed of the issues of dispute and the expectations of the parties from the mediation.

Throughout the process of mediation, the lawyer should be acting in good faith and abide with the lawyer’s duties and proper conduct. If the lawyer suspects foul play, it should be brought to the attention of the mediator.

Another important and rather technical role of the lawyer is to formulate a suitable and practicable legal offer of settlement. The terms of an offer of settlement should not be misleading or ambiguous. It would be helpful if a draft copy of the terms of agreement is prepared prior to the mediation in anticipation of a settlement.

Every step of the mediation including the negotiations, agreements and statements be it written or oral is subject to strict confidentiality. It is crucial that your lawyer understands and honours the terms of confidentiality and provides you advice on how the confidentiality terms work and what are the exceptions to the rule. Your lawyer should help you understand the nature of the “without prejudice” negotiations.

It is important that your lawyer guide you through every step of mediation and has the negotiation skills that help achieve the best outcome for you.

One of our experienced solicitors will be able to assist you in assessing your case or answering your questions in relation to mediation and dispute resolution process. Feel free to contact our office to speak with one of our friendly solicitors today. Call our office on 02 9251 3611 or email us at enquiries@pavuklegal.com.

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