"Pitch It Tactfully", Say Lawyers Recommending Mediation To Clients

Lawyers, in many ways, are the gatekeepers to the growth and development of pre-litigation commercial mediation practice in India. Being the first point-of-contact for aggrieved clients seeking justice, lawyers have the privilege of counselling their clients about their prospects should they choose to push open any door, in the multi-door dispute resolution spectrum. Considering limited accessibility to courts during the pandemic and clogged dockets, now a staggering 40 million pending cases, how does a lawyer pitch mediation to an emotional, non-compromising client?

Jacob Alexander, lead associate at CrestLaw Partners, says he has no doubts about recommending mediation as a "harmless option" for suitable cases. In his mind, he sees no apprehension about the client not trusting his credentials as a lawyer by suggesting a collaborative effort. "I don't see why any lawyer would feel that way. It doesn't alter the status quo and concludes in a short span of time. If successful, there are big gains to be made for a client," says Jacob.

Unfortunately, that is not a popular opinion and some lawyers admit that several clients do not trust such a recommendation. "They may feel like they are being asked to give up what they have long believed to be their right. The only way to resolve this to ensure that you earn your client's trust from the get go," says Anupama Hebbar, partner at Keystone Partners.

"What we often do is we file a petition/reply and then suggest mediation. This helps clients understand that we are not afraid to fight but we are also not imprudent enough to fight when a better resolution is possible," says Anupama, who likes reminding her clients of the wider array of creative self-determined solutions that can be mutually explored in mediation, that may or may not be granted by courts.

Both lawyers, Anupama and Jacob, who had the pleasure of representing their clients at an online commercial mediation at CAMP, agree on being objective in their approach while recommending a neutral third-party intervention to their clients. "Initially, offers were being exchanged through counsels, but we were unable to bridge the gap. I knew we required professional help to resolve this dispute and convinced my client to try mediation. They were fairly open to explore this option considering the settlement talks weren't progressing otherwise," says Jacob.

Anupama confesses that it is not an easy task convincing a client that mediation serves their best interests. She says, "We have to be clear that we aren't suggesting that we have no faith in their case. It helps to actively and repeatedly explain about the time, money and mental energy it takes to win a case in court or arbitration, even when it is a winnable one."

Institutionalised Mediation – Does it help?

Jacob suggests that it does help working with a reputed mediation institute. He elaborates, "We get access to experienced and skilled mediators. The institute machinery (rules, code of ethics, mediator panel, transparent fee structures, intake procedures) also makes the process more convenient and efficient." Anupama seconds her counterpart counsel in stating that her experience of institutionalised mediation gave the entire process a "professional" feel and enhanced the "credibility" of the private mediation sessions.

The two counsels also highlight the qualities of the mediator chosen from an institutionalised service provider. "Our mediator was instrumental in resolving the impasse. She refused to give up on the settlement and used her experience in motivating the parties to have faith in the process for a little longer," says Jacob, adding that, "given the nature of the settlement, we took many months to resolve as one of the parties required time to arrange their finances. In this period, the mediator was diligent in following up with the counsels to ensure the parties don't lose interest in this process," says Jacob.

"I admired that though both lawyers and clients felt exhausted (nearly quitting) when we hit a roadblock, the mediator consistently pushed on. The mediator's experience is also invaluable to deal with the human side of commercial disputes – something we lawyers tend to sometimes fail to consider," says Anupama, inviting her colleagues in the field to explore mediation for commercial disputes, especially those that focus on money recovery.

In these times, when the country is battling an unprecedented health crisis, where loss and grief surround us, lawyers could explore a window to sit down with their clients and talk to them about a collaborative effort to access closure, peace, and solutions. The country is yearning for healing and Jacob believes that "reminding a client of the timelines involved if they were to pursue this dispute through the court mechanism is key" to them voluntarily choosing the best path to pursuing justice.

From a legal practice sustainability viewpoint, the lawyers say it is too early to answer if it makes financial sense as a lawyer. "However, there is satisfaction in resolving a dispute early and I think the client is also happy. It most definitely makes business sense for the client," says Jacob.

Anupama agrees, "It does free up our time, that can now be invested in other disputes, which, for various reasons, may not be suitable for mediation".

Jonathan Rodrigues is a Mediator at CAMP, cofounder at The PACT and a visiting faculty at MNLU Mumbai. He holds a LL.M. degree in Mediation & Conflict Resolution from the University of Strathclyde, UK. Views are personal. Your may contact the author at jonathan.rodrigues@campmediation.in. Views are personal.