Mediation assignments over the last few years have come from lawyers, as well as their clients in a highly diverse range of situations. I have attended a public meeting of 400 people, facilitating the negotiation of complex commercial transactions, assisting in conversations between victims of abuse and institutions, and native title claims as highlights. I have also been called in to advise on negotiation strategies for complex contentious cases and in large commercial transactions.

Gone are the days when the skills of a mediator are restricted to the last-gap, litigious settlement negotiation. 

Generally speaking, clients want assistance in having conversations where the stakes are high, if they have a desire to explore highly innovative solutions or if relationships are damaged and/or very important to them.  Mediators work with legal teams on a wide variety of assignments, ensuring maximum value is extracted from the deal.

Innovation and advocacy

The skills are about having the conversation – about trying to see how the other person sees the world, what is going on in the minds of all parties – and sharing information that will allow an outcome to be crafted that meets interests and exceeds expectations.  Clients are not content with traditional processes such as litigation. They understand how that works and are prepared to go there if necessary. 

What they hope for is that, by using innovative methods and crafting courageous conversations, they can increase value, rather than destroy it with adversarial dialogue.

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There is a place for advocacy and even the adversarial language of litigation, a language in which lawyers are the masters, yet clients are increasingly seeking to engage in a very different dialogue before they resort to those types of communications.

Apart from facilitating discussions about tricky litigation, mediators are being asked to bring their negotiation, commercial and communication skills to the table as part of a team that includes lawyers in tricky negotiations, especially where a long term business relationship is being forged or requires some repair, for example – in Industrial Relations negotiations, for large and potentially difficult public and semi-public meetings, in cases of workplace behavioural concerns, indeed anywhere in which communication skills are of paramount importance to achieving value.

Lawyers need to maintain the role as the trusted advisor and advocate for their client, and therefore filling the collaborative negotiation role is sometimes difficult, hence the call for a mediator. 

In partnership/shareholders disputes mediators are often called in by the partners or their lawyers before any claim is filed, similar to the situation in Family Disputes.

Sometimes I get the feeling that some lawyers see the mediator as the enemy – someone who does not understand the “hurley-burley” of the modern legal world, and nothing could be further from the truth. 

What I want is to balance the legal argument with the business interests of those involved to craft exceptional outcomes.  That’s what I want to do and that’s the service that Negocio Resolutions wants to deliver.

Steve Lancken (pictured) is the founder of Negocio Resolutions. For more information visit www.negocio.com.au

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