Standing on a draughty railway station late one evening after a fraught but ultimately successful mediation, the barristers for the parties and I fell to discussing the challenges and satisfaction of representing parties in mediation.
One of them summed it up succinctly: “You have to bring the whole of yourself to mediation.”
Increasingly chancery and commercial barristers are bringing the whole of themselves to both litigation and mediation and in so doing, are finding new ways to deploy their knowledge and skills for the benefit of clients.
In mediation perhaps the nearest one comes to the traditional role of the barrister is in presenting your client’s case in the opening session – but its focus and audience are importantly different from those in court.
The opening session provides an opportunity to engage the other side and establish a constructive platform for negotiation. No message is effective unless it resonates with the listener: to that end the advocate must consider what message the other side needs to hear, who should deliver it and how it should be delivered.
It may be necessary to walk the tightrope of delivering a sufficiently strong broadside to enable your own client to feel later that he has settled with honour, while being sufficiently emollient to engage the other parties. But as court advocates, barristers are used to maintaining the balance between making submissions and cross-examining robustly and not alienating the judge. It is a case of a familiar skill adapted to a different setting.
Many of the other skills that barristers need in mediation will be familiar territory, but adapted and enhanced to the mediation process. Assessing the legal merits is a core element of all advice, but it acquires a particular piquancy when it is the basis for a binding late-night decision whether to take the money or open the litigation box.
Mediators and representatives are becoming adept at using computer programmes or decision trees to conduct a sophisticated risk analysis of the likely litigated outcome of the dispute.
The relevant commercial implications of a litigated outcome need to be weighed in the balance too: damaging publicity, effect on reputation, the client’s difficulty in financing or developing his business in the shadow of a court case, the drain on resources, both financial and human, and the benefits of money in the bank before the end of the financial year, to name but a few.
But too narrow a focus on litigated outcomes would miss one of the key benefits of mediation – the possibility of a resolution that, in subject matter and range of solutions, goes far beyond what a court could do.
The court is concerned solely with the parties’ rights and remedies in relation to the dispute before it. While they form a backdrop to the negotiations in mediation, mediation has a wider focus on the parties’ practical needs and interests.
Mediation representatives working in conjunction with the mediator and their client can think laterally and create imaginative and practical solutions.
In a recent mediation the breakthrough on the final knotty issue in a complicated settlement came in the early hours of the morning when the representative sat down with the client on the other side to listen to his concerns and needs. With her knowledge of what she would advise her client to accept, she was able to devise a solution that accommodated everyone’s concerns.
A softer touch
In mediation the barrister often needs to take off his metaphorical wig and bring some softer skills to bear, empathising with the client’s anger, frustration and desire for revenge, encouraging him to release expectations and mentoring him to move on beyond the dispute. In short, the mediation representative wears many hats: counsellor, wise sounding board, silent supporter, protector, negotiator and commercial problem solver as well as legal adviser and advocate.
Using such skills the mediation representative can work collaboratively with the mediator to achieve real resolution for their client.
Mediation advocacy is now recognised as a specialist skill that benefits from specialist training. The ADR committee of the Bar Council regularly runs mediation advocacy seminars with a module on risk analysis and experienced mediators and mediation representatives providing coaching on effective advocacy and negotiation. A recent welcome development is the foundation of the Standing Conference of Mediation Advocates, an organisation dedicated to those who represent clients at mediation.
Litigation and advice
Barristers are also re-thinking and adapting their roles in advisory work and litigation to meet the changing needs of clients.
Modern sets now offer a broader mix of expertise than would traditionally have been found within a single set.
This reflects a growing need for a ‘multi-disciplinary’ approach to the resolution of disputes. For example, a multi-national fraud dispute may require expertise in company law, partnership and LLPs and also detailed experience of property law, tracing remedies, constructive trusts, freezing injunctions and private and international law and procedure.
The multi-disciplinary approach sometimes also crosses the traditional divide between commercial and criminal with some criminal practitioners regularly working in tandem with civil practitioners and using their skills, honed in the criminal courts, in cross-examination.
Barristers with other specialist skills such as highly developed numerical skills may find a similar place in litigation teams. Many commercial cases turn in whole or in part on difficult numerical or financial issues for which expert evidence is required.
Another modern trend sees barristers increasingly working as an integral part of the client’s legal team and being involved in every aspect of the case, including commercial tactics: a far cry from the days when barristers were instructed on a piecemeal basis for specific tasks such as pleadings, opinions or advice on evidence.
In multi-national disputes counsel may even be the lynchpin of a multi-national legal team, liaising with professionals from other jurisdictions and needing a sound grasp of the legal culture and organisation in those countries.
The key skills of an advocate include an ability to adapt to changing situations as they unfold in court. On a broader canvas, the modern bar is demonstrating an ability to adapt its skills, organisation and ways of working to ensure the best outcomes for clients.
Beverly-Ann Rogers is a barrister at Serle Court