Wednesday, 19 March 2008

Mediation Skills

I hope you all subscribe to fellow SOLO, Justin Patten's e-zine as his articles are always stimulating and interesting. His latest offering starts:

"Set Aside Your Legal Skills to Become an Effective Mediator

A recent article by Sir Henry Brooke, dealing with his new career as a mediator set me thinking about the different skill sets that mediators and lawyers need to do their jobs effectively.

Sir Henry Brooke is a retired Judge and became a Lord Justice of Appeal in 1996 and Vice-President of the Civil Division of the Court of Appeal of England and Wales in 2003. In the article he wrote about his personal perceptions and experiences:
"The advocate’s skills are to conquer the details of a dispute, to give clients high quality dispassionate advice about the pros and cons of pre-trial settlement offers, and if settlement fails, to place their case clearly and persuasively before the court or tribunal, whether in written or oral submissions.
The skills of a judge, on the other hand, are to conquer the details of a dispute, to read or listen attentively to the arguments on both sides, and then to deliver a judgment, whether orally or in writing, which shows that one understands what the dispute is about and is giving clear reasons for preferring one side’s case rather than the other.

A mediator’s skills are different. Of course he or she also must conquer the details of a dispute in order to secure the trust of both parties. But there the similarities end."

Sir Henry Brooke raises an important point. It’s not a natural switch for someone trained in the law, as a judge or a lawyer, to adopt the completely new stance of a mediator."

It was just the insight I needed to understand a threatening letter I was dealing with for a client. I knew the writer was a trained mediator and the letter positively dripped with mediation cliches, but the legal basis for the claim was dubious and poorly articulated. I realised that mediation organisations were amongst the first to offer training to patent and trademark attorneys and these opportunities were taken up to fill the gap in the patent attorneys' formation for legal and litigation skills.

I question whether mediation training is an effective substitute for litigation training. A fully trained litigator may benefit from mediation training. Certainly most major law firm litigators advertise the mediation qualifications of their members but I wonder how many of them use these skills in the initial assertive stages of litigation. Fortunately the legal training organisations are now making formal training in litigation skills more widely available.

1 comment:

  1. If mediation and litigation -- and for that matter arbitration -- are discrete techniques for dispute resolution, it should be obvious that training in each area is not an effective substitute for training in any of the others. The fact that all are spoken of together, and sometimes offered to clients as though they are equal routes to dispute resolution, must not be allowed to disguise their essential and fundamental differnces.