Generally, lawyers are pre-occupied with the law. When they negotiate with
other lawyers, the discussion revolves around each lawyer's opinion of how a
court would decide a case. Indeed, in giving competent legal advice, a lawyer
must tell his client how he views the case based upon existing statutes or
precedent established by case law relevant to the given factual situation.
Often, the law factor takes over and becomes the sole factor on which a dispute
is eventually settled. This one factor analysis ignores the true needs and
concerns of the parties in a dispute.
Especially in some areas of law, lawyers are familiar and friendly
with other lawyers in their community. They see each other often in court and
over years of practice, become familiar with other lawyers and their styles of
negotiation, demeanor and practice before the court. This may lead a client to
believe that their lawyer is too chummy with the other side and is selling out
their position. Unless the client is there listening to every word their lawyer
is stating to the other side, it is easy for him to become paranoid in this
regard. If you feel this way, you should request that you be present during all
negotiations on your behalf.
The bottom line in having a lawyer represent you is that you either
trust your lawyer to be your advocate or you don't. Lawyers are bound by their
code of ethics to be zealous advocates of their client's interests. This
doesn't necessarily mean that they will be advocates of their client's
positions. The difference between one's position and the interests behind those
positions leaves room for negotiation and allows two or more parties to a
dispute, with or without their attorneys, to reach resolution without having a
judge or jury decide the issue. If you will only resolve your entire dispute or
a part of it a certain way, be sure and communicate that to your attorney. That
way, your attorney will know that you are only willing to resolve your dispute a
certain way, even though there may be other solutions.
If you feel uncomfortable with a certain lawyer being your advocate,
then you need to find someone you are comfortable with or represent yourself.
It is very hard for some people not to be involved in every step of the
process. This is a decision that may require some soul searching on your behalf
when you hire an attorney to represent you in the first place. You need to ask
yourself how much control you are willing to delegate to a person who has the
power to make decisions on your behalf. If you feel uncomfortable with letting
go, then you will need to be kept informed by your attorney of the negotiation
process in detail, whether that process takes place in his office or in the
hallways of the courtroom. If you want to control the negotiations, but want to
be represented by a lawyer, the more detailed instructions you give your lawyer,
the better off you will be.
MEDIATION
In
mediation, a neutral third-party will assist you in the negotiations. Most
forms of mediation are less intrusive than arbitration and going to court where
a third-party makes decisions about the dispute.
National
organizations of mediators promote the following aspects of mediation:
·
It's confidential.
·
Relatively inexpensive.
·
It empowers the parties to make their own decisions and be creative in
solutions to the dispute.
·
Generally agreements are longer lasting because the parties solve their
own problems.
·
It preserves whatever relationship exists between the parties.
Some
assert that mediation is most effective where there are emotional underpinnings
to the dispute, such as dissolution of marriage action, a sexual harassment
complaint, discrimination law suit or a neighbor dispute. Actually, there is no
reason why mediation cannot be used to resolve all disputes. If it doesn’t
work, the parties can always use a method which is more intrusive. If mediation
works, not only will the dispute be resolved, but time and money will be saved
as well.
Mediation, however, is not without problems. If litigation is inevitable, the
mediation process may be used by a party not committed to the process to gain
valuable information that may be used against the other party in litigation. If
the information can be verified from outside the mediation process, that
information can be used as evidence in a lawsuit. The information will then
give the advantage to the party obtaining it in the mediation. Also, mediation
may be used to stall the process between the parties to resolve their dispute.
In
mediation, each party to the dispute negotiates in the presence of the
mediator. There may be advisors, including attorneys, for each of the parties
present. The mediator has a variety of tools at his disposal,
including:
·Asking
questions to help focus the parties on the issues.
·Testing
the reality of a party’s position by comparing that position to an outside
source or standard, e.g., your opinion of the value of the family residence
compared with the opinion of the value of the residence by a professional
appraiser,
·
Re-framing statements to get parties to really listen to each other. By
re-stating the parties’ statements in a different way, the mediator can
emphasize another point so that the other party will hear what the party is
saying from a different perspective. Also, the mediator may use re-framing to
focus the parties on a different aspect of the problem or possible solution.
·Asking
questions to get the parties to articulate the interests behind their positions
to find out what really motivates them or what they really need. In this way,
options may be explored that the parties may not have thought about. The
negotiating pie may be expanded so that each party’s needs are met creating a
win-win situation.
·
Summarizing in writing what each party said in mediation and asking each party
to verify the accuracy of the writing at the next session.
·Reducing
the mediated agreement to writing.
·Privately
talking to each party separately to help explore possibilities of settlement,
known as “caucusing”.
Law
should be looked at as only one standard that may used in helping the parties
resolve their dispute. Other standards and the parties’ personal interests or
needs should also be considered. You may be preoccupied with the law and want
your rights protected. Yet, it may be more prudent for you and the party you
are having the dispute with to resolve the dispute based upon what is needed
rather than what the law provides.
Mediation, like negotiation, is a conciliatory way to resolve disputes. It can
consider all the parties needs and tangible or intangible factors including
those used to create a stable, emotional and moral relationship between the
parties. This is not to say that mediated agreements should not be legally
enforceable, only that the parties can agree to just about anything they want to
and can decide to make the agreement legally enforceable or not.
Legal
action is only one way to resolve a dispute over a mediated agreement. The
parties can always go back to mediation. Mediation may be less expensive than a
different method of dispute resolution if the parties are careful to monitor the
time and costs of mediation and retain their commitment to the process.
Mediation allows parties to decide a dispute, as fast or slow as they want. It
also allows them to create their own destiny.
Whether
or not the mediation is successful will depend on the skill and knowledge of the
mediator. Accordingly, choosing the right mediator, as discussed in Chapter 4,
is an important task. There is also a need for attorney participants to
understand the mediation process. That way, they may help, rather than hinder,
the process.
