ROLE OF LAWYERS IN MEDIATION

Mediation as a mode of ADR is the process where parties are encouraged to communicate,
negotiate and settle their disputes with the assistance of a neutral facilitator i.e., mediator. Though
the role of the lawyer in  mediation  is functionally different from his role in litigation,  the service
rendered by the lawyer to the party during the mediation process is a professional service. Since
lawyers have a proactive role to play in the mediation process, they should know the concept and
process of mediation and the positive role to be played by them while assisting the parties in mediation.
The role of the lawyer commences  even before the case comes to the court and it continues throughout
the mediation process and even  thereafter, whether the dispute has  been settled or not. Awareness
programmes  are necessary to  make the lawyers aware of the concept and process of mediation, the
advantages  and benefits of mediation and the role of lawyers in the mediation process.
The role of lawyers in mediation can be divided into three phases:
(i) Pre-mediation;
(ii) During mediation; and
(iii) Post-mediation.

(i) Pre-Mediation
When faced with a dispute and the prospect of approaching an adjudicatory forum for relief, a
party first contacts a lawyer. The lawyer must first consider whether there is scope for resorting
to any of the ADR mechanisms. Where mediation is considered the appropriate mode of ADR,
educating the party about the concept, process and advantages of mediation becomes an important
phase in the preparation for mediation.  The lawyer is best placed to assist his client to understand
the role of the mediator as a facilitator. He helps the client to understand that the purpose of
mediation is not merely to settle the dispute and dispose of the litigation, but also to address the
needs of the parties and to explore creative solutions to satisfy their underlying interests. The
lawyer can help the parties to change their attitude from adversarial to collaborative. The party
must be informed that in a dispute involving the break down of relationship, whether personal,
contractual or commercial, mediation helps to strengthen/restore the relationship. While helping
the party to understand the legal position and to assess the strength and weakness of his case
and possible outcome of litigation, the lawyer makes him realize his real needs and underlying
interest which can be better satisfied through mediation.

(ii) During Mediation
The role of lawyers is very important during mediation also.   The participation of lawyers in
mediation is often constructive but sometimes it may be non-cooperative and discouraging. The
attitude and conduct of the lawyer  influence the attitude and conduct of his client. Hence, in
order to ensure meaningful dialogue between the parties and the success of mediation, lawyers
must have a positive attitude and must demonstrate faith in the mediation process, trust in the
mediator and respect for the mediator as well as the other party and his counsel. The lawyer
must himself observe the ground rules of mediation explained by the mediator and advise the
party also to observe them. The lawyer must be prepared on the facts, the law and the precedents.
At the same time, he must enable and encourage the party to present his case before the mediator.
Considering that the party may not always be able to state the complete and correct facts or refer
to  the relevant documents, the lawyer must be alert and vigilant to supplement them. With the
help of  reality-testing, using the  BATNA/ WATNA/ MLATNA analysis, the lawyer must
constantly evaluate the case of the parties and the progress of mediation and must be prepared
to advise the party to change position, approach, demands and the extent of concessions.  When
it is felt necessary to have a sub-session with the lawyer(s) the mediator may hold such subsession with the lawyer(s) and the lawyer(s) must cooperate with the mediator to carry forward
the process and arrive at a settlement. Such sub-sessions with the lawyer(s) can be held by the
mediator also at the request of the party or the lawyer. The lawyer participates in finalizing and
drafting the settlement between the parties. He must ensure that the settlement recorded is
complete, clear and executable. He must also explain to his client and make him understand
every term of the settlement.
iii) Post-Mediation
After conclusion of mediation also, the lawyer plays a significant role. If no settlement has been
arrived at, he has to assist and guide the party either to continue with the litigation or to consider
opting for another ADR mechanism.
If a settlement between the parties has been reached before the mediator, the lawyer has the
responsibility to reassure his client about the appropriateness of the client's decision and to
advise against  any second thoughts.  To maintain and uphold the spirit of the settlement, the
lawyer must cooperate with the court in the execution of the order/decree passed in terms of
the settlement.

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