Role of lawyers and parties in Mediation
Mediation as a mode of ADR is the process , where a neutral third party assists disputing parties in resolving the matter . Mediation encourages the parties to communicate and negotiate.
In mediation , the role of lawyer is fundamentally different from his role in litigation. Since the lawyers have very proactive role to play in this , they should know the concept and process of mediation and the positive role to be played by them while assisting the parties in mediation . The role of lawyer starts even before the case comes to the court and it continues throughout the mediation process and even thereafter , whether the dispute has been settled or not .
The role of lawyers in the meditation , can be divided into three stages .
- Pre Meditation
- During Mediation
- Post Mediation
When a party faced with a dispute , they go seek the advices from the lawyers . The lawyers first must consider whether there is scope for restoring to any ADR mechanisms. As majority of parties are always unaware about the mediation process . So it becomes the duty of the lawyer to educate the party about the concept , process and advantages of Mediation . The lawyers have the skill to convince their clients and make them understand why they should go for mediation before litigation ?
The party must be informed that in a dispute involving the break down of relationship, whether contractual or commercial , mediation helps to strengthen / restore the relationship . Before the meditation , the lawyer and the client can prepare the mediation brief and also figure out options, if any .
The role of lawyers during Mediation is very important . But the role can become constructive or destructive depending upon the conduct of the lawyer . It can be constructive , if the lawyer holds positive attitude and demonstrate faith in the mediation process . As the conduct of his client through the mediation process .
The lawyer must himself observe the ground rules of meditation explained by the mediation and advise the party also to observe them . He must also encourage the party to present his case before the mediation with the help of reality testing, using the BATNA /WATNA /MLATNA analyses , the lawyer must constantly evaluate the case of meditation and must be prepared to advise the party to change position , approach , demands, and the extent of concessions. When it is felt necessary to have a sub- session with lawyer (s) the mediatior may hold such sub session with the lawyer (s) and the lawyer (s) must cooperate with the mediation to carry forward the process and arrive at settlement. The lawyer must ensure the settlement recorded is compute, clear and executable . He must also explain to his client and make him understand every terms of the settlement.
If no settlement had been arrived at , the lawyer has to guide the party either to continue with the litigation or to consider opting for another ADR mechanism .
If a settlement between the parties has been reached before the mediator , the lawyer has the duty to check whether the settlement agreement protects the interest of his client. The lawyer must also cooperate with the court in the execution of the order / decree passed in terms of the settlement .
Role of Parties in Mediation
Though the parties get the guidance and assistance of their advocate and neutral mediator , the final decision is of parties. The consent of the parties is not mandatory for referring a case to mediation and the parties are required to participate in the mediation, is voluntary , but the parties have the authority to decide whether the dispute should be amicably settled or not and what should be the terms of the settlement . The parties have the right to heard and speak before the mediation but the attempt must not be to argue and defeat . Parties may have to change their position and alignment with their best intent . Hence settlement duly arrived at between the parties in mediation binding on the parties and the parties are bound to cooperate in the execution of the order / decree /passed in terms of the settlement.