We have asked to our network of experienced lawyers and legal professionals from all over the world to answer to a very simple question:
“If you had to summarize in your own words the benefits of mediation to a fellow Portuguese lawyer who has never used this process, what would you tell him?”
Here are their answers.
The Honourable Sir Laurence Street (AC, KCMG, QC, Commercial Mediator and ADR Consultant, Sydney, Australia)
“Lawyers/mediators are often asked why we are promoting a process that cuts across the ordinary practise of contesting issues in court for which we have trained and gathered experience. There are two answers to this question. In the first place lawyers are no less ethical than were dentists when they promoted the fluoride evolution in dental treatment. As we all know this made a significant inroad on quite a major part of the dental professions work. As a true profession the dentists recognised the higher obligation to maximise the prospects of dental health.
In the second place trial lawyers are all too well aware of the risks of loss in court and the consequent prospect of a distressed client. As against this, mediation presents a very strong possibility of settlement in which case, of course, both of the disputing parties have achieved a successful outcome. The statistics of success vary between 60% and 90% according to the results of various mediation bodies. This contracts with the broad 50% prospect of success/failure in litigation.
For a trial lawyer a process which delivers a realistic prospect of a satisfying outcome to a client not only avoids the embarrassment of losing the client’s case (and possibly also the client); it presents the prospect of a satisfied client and strengthened ongoing lawyer/client relationship.
In a mediation neither side loses. Both sides enjoy the common prospect of an agreed outcome. The win/win is in the fact of the resolution not the terms of it. In sharp contrast to litigation, negotiated resolution brings closure for both parties on terms they have agreed.”
Alan Limbury (Managing Director, Strategic Resolution, Sydney, Australia - Specialist Accredited Mediator and Chartered Arbitrator - Adjunct Professor, Faculty of Law, The University of Sydney):
“In the words of the English critic Malcolm Muggeridge: “No dispute is ever about what it is about
”. This explains why mediation can achieve resolution of what is really important to the parties in dispute, not just settlement based on perceptions of who is right and who is wrong. A skilled mediator can help the parties expand the pie before it is divided, by uncovering the real interests underlying their positions and encouraging the parties to give vent to their feelings. Feelings are irrelevant in a court environment but in mediation, where the focus is broader, people often need to express their feelings before they can contemplate solutions. This is just as true of high stakes commercial disputes as of family and neighbourhood disputes. Further, the opportunity to confide in the mediator often enables the mediator to see solutions where the parties may be stuck. In appropriate cases, therefore, mediation has advantages over both litigation and bilateral negotiation and should always be considered when deciding which of many processes is most suitable both for the dispute and for the parties. Lawyers have an important role in mediation, by succinctly articulating their client’s case in the initial phase (which I call “Who did what to whom?”); by giving advice to their clients on prospects of success and on proposed terms for an agreement in the next phase (which I call “What’s it going to take to fix it?”); and by drawing up the agreement once resolution is reached. I would not wish to mediate unless the parties are legally represented.”
Harold Werksman (Partner, Holding Redlich, Sydney, Australia):
"Mediation is a structured negotiation which is assisted by a neutral third party mediator. Its main benefits are that it allows parties to focus upon their own dispute and to achieve a solution which they can live with. It allows the parties to come to understand each other's perspectives and to gain a full appreciation of the matters at issue. If the parties are unable to settle, they at least have a full appreciation as to why they are going to continue to litigate.
In many instances, litigants come to the mediation process with very little expectation of settlement. In my experience, the process is highly effective in facilitating settlements and I would not hesitate to recommend the use of the process. I am very keen for parties to engage in mediations at an early stage in the dispute so that they can give themselves a full opportunity to resolve their differences. In many instances, mediations which do not succeed at first, result in later mediations of the same matter which are successful."
Jeremy Lack (Partner, Altenburger, Geneva, Switzerland):
"Given the average statistical ratings of commercial mediation (70-80% settlement rates), the fact that it typically provides faster or cheaper outcomes, which often include better results that are more aligned with the parties' future interests and include solutions that traditional court or arbitration proceedings cannot offer, the question for lawyers and their clients these days is: "Can you afford not to try mediation?!"".
Mark Buchanan (Consultant, Litigation and Dispute Resolution, Blake & Dawson, Sydney, Australia)
"For an experienced commercial lawyer, the best things about mediation are the following.
The process gives you and your client much better control over the outcome and your professional skills as a lawyer and negotiator can be utilised to full advantage for the benefit of your client, in a way that is completely visible to your client.
The range of solutions allows you and your clients to be creative, so you can come up with possibilities that technically would be well outside the confines of the dispute and beyond what a Court could possibly give your client, but those possible solutions can offer elements that are critical to the commercial realities.
Indeed, the resolution of the dispute, and the journey to that resolution, can often be a springboard to a better and deeper commercial relationship between your client and the other side, and also most importantly between yourself and your client. The time you spend together in the mediation can give you as an adviser valuable insights into your client's approach and his business. Those insights give you an incredible advantage over other potential legal representatives."
“Mediation is not only an effective tool to solve disputes, but also the best way to see your clients happy for the result and pleased to have their lawyer involved.”
Dr. Rimantas Simaitis (Managing Associate, Dispute Resolution, Raidla Lejins & Norcous, Vilnius, Lithuania - Head of the Group, Attorney at Law, Arbitrator, Mediator):
“Mediation may generate your client‘s satisfaction offering him/her and you a path to a sensitive, effective, time and costs saving dispute resolution. As Carrie Menkel-Meadow said in one of her books: “To sue is human, to settle is divine