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'No Compromise on Preparation before Mediation'

Aparna Ravi and Jonathan Rodrigues
16 Sep 2021 5:33 AM GMT
No Compromise on Preparation before Mediation

It was an absolute pleasure engaging in an intriguing fireside chat on 'Prepping Your Client for Mediation', organised by CAMP Arbitration and Mediation Practice and IDEX Legal. This was the second episode of #WinThisTogether – a series on the various aspects of Advocacy in Mediation. More information on the Fireside Chat series and the subsequent episodes is available...

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It was an absolute pleasure engaging in an intriguing fireside chat on 'Prepping Your Client for Mediation', organised by CAMP Arbitration and Mediation Practice and IDEX Legal. This was the second episode of #WinThisTogether – a series on the various aspects of Advocacy in Mediation. More information on the Fireside Chat series and the subsequent episodes is available HERE

Laila Ollapally, founder and lead mediator, CAMP, set the mood with an inspiring keynote, addressing the role of a lawyer in the build-up to a mediation. She invited the panellists and participants to consider redefining the term 'victory for the client' in a mediation setting, where the end goal is meant to be a win-win. Besides a change in lawyer mind-set, Laila reminded the audience that a deep understanding of the process is crucial to a successful preparation.

The panel comprised professionals from the law firm and chamber ecosystem, all generously sharing their experiences of preparing themselves and their clients for a mediation. Jonathan Rodrigues, Mediator at CAMP, anchored the discussion featuring Aparna Ravi (Partner, Samvad Partners) Anuparna Bordoloi (Founder, Chambers of Anuparna Bordoloi), C K Nandakumar (Head, Chambers of C K Nandakumar) and Prashant Popat (Senior Partner, ALMT Legal)

Below are some of the key take-aways from the discussion on how to prepare for a mediation :

1. Appointing a Mediator

Appointing the right mediator is an important factor to consider to ensure a successful mediation. Aparna emphasised the value of a trained, professional mediator who is a process expert. While negotiations are routinely conducted by lawyers, it is the skilled, trained, professional mediator who can best guide parties to resolution. Nandakumar also stressed the value of a subject-matter expert particularly when the dispute revolves around very specialized areas of law such as IP disputes.

2. Identifying a neutral safe space and Participants for the mediation

As part of preparation, Prashant reminded us that lawyers need to understand the needs of clients to structure a suitable environment for resolution. Aspects like examining whether the mediation should be in-person mediations or virtual mediations are points to be considered while preparing for a mediation. Additionally, Anuparna emphasised the importance of having the right people at the mediation table for productive sessions. Lawyers therefore need to identify the right decision makers, influencers, experts and other individuals who must be present to ensure a successful mediation.

3. Preparing a strong Mediation Brief

The speakers associated tremendous value in the exercise of drafting a mediation brief, an exercise quite peculiar to institutional mediation service providers, such as CAMP. Quite different from a written submission to court, the purpose of the mediation brief is a concise document to help the mediator understand the main issues of the dispute, the pertinent legal position, history of settlement efforts, reasons for lack of settlement. Aparna spoke of the value of working on the mediation brief with the client, as a great way to prepare the client for the mediation process and discuss innovative resolution possibilities. Prashant uses the process of preparing the mediation brief as a way for the client and lawyer to build a negotiation strategy and evaluate alternatives.

4. Good Legal Research as the backbone of a successful negotiation

Strong legal research and legal understanding is critical for good decision-making in mediation. Anuparna asserted that good legal preparation by the lawyer paves the path for informed, sustainable solutions. Nandakumar highlighted the need to identify the documentation required to establish facts with the mediator, and also determining the right time and place to present this documentation.

5. Assist Mediator in Designing the Process

The lawyer understand the dispute and the mental make-up of his/her client. This information, if shared with the mediator (of course, with the permission of the client), will assist the mediator in setting timelines and structuring the sessions accordingly. In the process of doing this, the lawyer can also build the client's confidence in the mediator and open doors for the client to be forthcoming and genuine with their interests during the mediation. As part of preparation for the mediation, it is important for the lawyer to know how best to prepare the mediator so he/she can set the mediation up for success.

6. Preparing yourself and your client for the Mediation

There was consensus across the board that clients must be prepared for a collaborative process and understand the role of the mediator as being distinctly different from that of a judge/arbitrator. Understanding the different role of the lawyer in a mediation as compared to court is another key aspect of the preparation process.

It was also identified that a good mediation lawyer will prepare the client for the intensity of the mediation process considering the role that the client will be playing in the process; the patience and persistence that will be needed to get to resolution as well as identify the clear roles that every participant in the mediation will be playing to get this dispute to resolution.

When an actor shifts from theatre to film or a journalist moves from print to broadcast, their role remains the same – to play a character or to report the news – even though the medium or platform may have changed. Similarly, the role of the lawyer remains the same – to pursue the client's best interests. A mediation lawyer simply uses a collaborative medium, as compared to a combative platform in the courtroom, to find a winning solution for the client.

(Aparna Ravi is a partner at Samvad Partners. Jonathan Rodrigues leads the Online Mediation vertical at CAMP Mediation). Views are personal.

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