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Lawyers now have ‘a much richer understanding’ of mediation

After practising in mediation for more than two decades, the practice area has grown and evolved greatly – and more lawyers understand both the benefits and the challenges within mediation.

user iconLauren Croft 28 December 2023 SME Law
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Steve Lancken is the managing director of Negocio Resolutions and the winner of the Arbitrator Mediator of the Year category at the 2023 Australian Law Awards. Speaking on a recent episode of The Lawyers Weekly Show, Mr Lancken discussed the current climate in mediation, as well as how it has evolved in recent years.

Mr Lancken has been practising as a mediator for more than two decades, in addition to practising as a commercial litigator for 18 years – and said that when he was conducting commercial litigation, only 5 per cent of his matters went to trial and were mostly solved in negotiations.

“I thought it would be a good idea if I was really good at negotiating and helping people resolve conflict. And that’s what I did. And I then left the law firm and had to decide what I was going to do when I grew up,” he said.


“And I decided I enjoyed negotiation so much that I would take it on as a full-time career. And that meant being a mediator and assisting others and my colleagues and the people who I’d worked with and the people who’ve been on the other side of commercial litigation to settle cases. And that’s how my journey got to mediation. Along the way, I studied arbitration as well so that I could have a broad understanding of all types of conflict management and resolution.”

“I really like working with lawyers, most of whom are doing their very best to help their clients. They want to find outcomes. And when I work with those people who do work in that way, it gives me a great deal of satisfaction. And it means that I can assist those lawyers and their clients not just manage the cost or the time in litigation, but get outcomes that make sense, which most lawyers are looking for.”

In addition to enjoying his work, Mr Lancken said that being able to mediate matters has been incredibly rewarding – particularly as, in litigation, there can be a lot of “waste”.

“Very often, you will spend a lot of time on an issue in litigation and it falls away. And I don’t mean that in any way to be disparaging or to criticise lawyers. That’s the business that we’re in, and that’s what litigation is about. So that’s the first thing. Waste of time, waste of money, waste of energy. For me, that doesn’t make me feel good. The second thing I realised, as I did more complex matters, is that there were solutions that sometimes worked a lot better for my clients than litigating, and I wanted to see if I could find those solutions,” he explained.

“I didn’t work for banks or liquidators. The last thing that a bank or a liquidator wants is to have a judgment that people read, or that becomes the subject of some sort of conversation. I hate to think what would happen in these days of social media. There are ways and means of resolving disputes that [don’t] hide outcomes, but find outcomes that are more satisfying and more productive for all sorts of clients. And that’s the sort of thing that attracted me to mediation. It was finding something that was more satisfying to my clients.”

The current climate within mediation is now vastly different to that of 20 years ago, when, Mr Lancken said, “it wasn’t very well understood”. Now, the legal profession has a much better understanding of the practice area, and it’s more commonly used in courts.

“You can’t conduct a piece of litigation without having some sort of mediation or dispute resolution process. The courts won’t give you a trial date in most circumstances unless there’s urgency or some other reason without a mediation taking place. That means that the lawyers who are involved in contentious matters have to engage in these processes. Interestingly, universities have only just over the last 10 or 15 years begun to teach students about negotiation and mediation,” Mr Lancken outlined.

“But there is a much richer understanding amongst lawyers of the benefits and also the difficulties of mediation. So, there’s a much more sophisticated practice, and these days, I’m not just asked to mediate; I’m asked to mediate and to address particular issues, whether it be a relationship issue, whether it be a complex commercial issue, and lawyers will come to me and say, we want to have a mediation, but we want to focus on this. And our clients want to address these issues, or they want to understand better how they can get around this problem.

“That speaks of a greater sophistication in the way people see mediation now. There are still pockets of naivety or pockets of misunderstanding of what mediation is and can do, but there isn’t a lawyer who I come across junior to the most senior who hasn’t been involved in a mediation. So, when I first started mediating, judges who would refer matters to mediation would never have been in the mediation room. These days, most judges who practised law, and most of them did, have been involved in mediation.”

In terms of what excites him about the growing sector, Mr Lancken emphasised that more competition is a good thing – and so is the increasing scope of young lawyers’ repertoires.

“There are not many barristers who work in the commercial sphere who haven’t at least been involved in a mediation course. And many of those barristers are holding themselves out as mediators, barristers and solicitors. That speaks of the opportunity, because some of us have been working and paying our school fees, conducting mediations for a long period of time. It also means there’s a lot more competition in the market, and I think that’s a good thing.

“As people see others mediate, they understand different approaches. They can be more sophisticated in their choices of the mediators, who they choose to engage to assist their clients reach resolution,” he added.

“I [also] coach the University of New South Wales international mediation team. We take them to Paris, to the International Chamber of Commerce, and we take the smartest and the most committed law students to those contests. And law students are hungry to understand different ways of resolving conflict. That doesn’t mean they’re less engaged in the legal debate and argument. It means they’re adding a skill to their repertoire. And I think it is the young people that excite me the most.”

NB: This transcript has been edited slightly for publishing purposes. You can listen to the full episode here:

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