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Should Parties to Mediation Have Legal Representations?

Introduction-

Rendering justice is what is meant by upholding the constitutionality of the country by interpreting its legal system. In other words, it is an ADR mechanism. All over the world, there are two types of judicial approaches followed- the adversarial approach and other is the inquisitorial approach. Countries like England, USA, and India follow this system where a panel of sitting judges decides a case.[1] Their job is to interpret and not to make law. The counsels of both of the parties put forward their reasonings and based on the law and the pieces of evidence presented, the court gives it final judgement.[2] Inquisitorial is prevalent in most of the European countries. Roman law is the root of the legal system of countries like France, Italy etc.[3] this system involves the investigation of the case by the judge himself. There is zero court involvement however it depends upon the grimness of the case. The trial procedure is given utmost importance too.[4] However, there was another one mechanism which dates back to the 19th century, called alternative dispute resolution. It is not something of a novel concept though it gained prominence a couple of years back. 

When it comes to dispute resolution in the civil justice system, especially talking about England and Wales so they follow the adversarial process. It is after this, that alternative dispute mechanism is taken recourse too if the parties aren’t satisfied with the judgement. The judicial system that of UK is divided into criminal justice system and the civil justice system.[5] The core of the civil justice system is to redress the issue faster, inexpensively and effectively. The arena of this system is to address the privacy rights of the citizens or the organisation and solve any dispute between them whatsoever. These are high courts, county courts having a certain jurisdiction. However, the reality was a bit different compared to the foundation that was laid for this system. It was in 1996 when Lord Woolf reviewed it and made about 300 recommendations to change the system like reduce the cost, make fewer delays and be less complex.[6] The mechanism of this system is hierarchical based.[7] Here first the case is filed before the county court and if not resolved, then moves to the high court, the court of appeal following the House of Lords. It deals with cases like marriage, torts, breach of contracts etc. each court has their jurisdiction and the limitation on the sum involved. 

There are five stages involved to make the mediation process successful. It is an introduction; statement of the problem; information gathering; identification of the problem; bargaining; and in the last settlement.[8] At the introductory session, the mediator shall introduce himself to the parties and ensure that he shall act in an unbias way throughout the proceeding. Referring to the documents given to him he shall give his opinion of the issue and explain the protocol and the procedure of how shall the proceeding will be conducted. At the statement of the problem level, the mediator shall give a chance to each of the parties to explain their issues and resentments that they feel like. At the information gathering stage, before being handed over to the mediator, he shall have a look at the facts, evidences and what all shred of evidence he has to understand the matter. Then he shall ask certain questions to the parties individually and try to understand their agenda and purpose of why did they act out in a certain way. In the identification of the problem, the mediator shall figure out what is the core of the issue. In the bargaining level, which is the most creative of all levels, the mediator shall propose a draft settlement amongst the parties and leave it the parties to decide for themselves. Another way is when the mediator privately meets the parties to discuss their emotions and fears. After this level, the final settlement is kept on the table.

To have a good legal background, one needs to have inherent skills and skills that he shall develop in his curriculum. One of the important inherent skill he should possess is courage. A courageous person can become a good lawyer in this industry. When it comes to developing the skills and nurturing them that shall begin when a person enters the law school. There he is a student and he should focus on developing an understanding of the procedure especially about how the three organs of any democratic setup work. These include the legislature, executive and judiciary and the separation of powers. The other important stuff that a student should focus on is the structuring his researching skills. Research is a very important aspect of any lawyer and not all research work could be alienated to juniors. A lawyer himself at some point has to do this work. This is crucial as the entire case depends upon it.[9]

To be a good mediator, according to the CEDR (Centre for Effective Dispute Resolution) which consists of 142 mediators across 22 countries,[10] and a growth of 20% in the demand, they say that there is no exhaustive list to define a good mediator. However, there are certain traits which a mediator should possess apart from the knowledge or the skills he already has. He should be able to show that he had experienced the ethical situations where he gave an unbiased decision. He should be able to show trustworthiness, which also was the take of a Northwestern University professor, Stephen Goldberg.[11] He too emphasized the fact that a good mediator must build that rapport with the parties so that they can confide in him. That being said, he must be impartial, patient, be empathetic and perceptive too.

The cultural issues in dispute resolution are seen because of the dynamic nature of this mechanism. The dispute resolution of the UK shall differ from that of the USA and vice-versa. USA informal dispute resolution dates back to the colonial times when communities would sit together and resolve their disputes through negotiation and mediation. Now it is being used in family and labour law cases. Statistics show that about 80% of the cases are being solved through the mediation process.[12] this justifies the fact that due to the cost-expensiveness of the litigation procedure, people did find this to be more efficient. In the UK, it is mostly engaged in commercial law. here it is different from the US in a way that the courts suggest the parties to solve their disputes via mediation or any ADR mechanism. It is said that mediation is 80% cheaper compared to litigation. [13]

The role of a mediator is any mediation proceeding is to sit and listen to the parties contention and then arrive at a unanimous settlement. He helps out the parties in a very constructive environment where he acts neutrally for the betterment of both of the parties. He, again and again, keep taking feedback from both the parties and keep them at pace. This is done because it is very difficult for the parties to be convinced to solve their disputes through ADR. [14] 

Mediation is a non-adversarial process, and very less literature been written on the part that whether clients be represented by their legal representatives, it is generally believed that the involvement of legal representatives shall infringe the autonomous feature of mediation. However, many writers and practitioners have concluded that the involvement of the representatives had eased their work as the parties were more convincible. Mostly the reason could be that when anyone decides to have any legal process to be taken, he relies mostly on the guidance of his representative. He trusts his lawyer or barrister unequivocally and hence does as what he says. Therefore when these people become a part of mediation proceedings then the parties are more at ease since they know that their representative is working out in their best interests. Therefore, their involvement eases out the proceeding.

The ambit of legal representatives is quite vast. This includes the arbitrators, mediators, solicitors, barrister etc. however, if we relate the term legal representative in respect of the clients, so they are being represented by lawyers itself. Now whether lawyers should be allowed to intervene in the mediation proceeding has always been disputed. Reason being, the whole agenda of ADR is to have less of court intervention and by extension its legal representatives too. But in reality, there have been many cases where the mediation proceeding, they have represented their clients. In one such research, many public law practitioners were interviewed and they stated that lawyers’ intervention is necessary.[15] However, there are defined roles and the lawyers have to abide by that. Like the lawyer and client should intimidate the mediator beforehand that who shall be speaking in the proceeding. A complete handbook was made called the Mediation tool kit by the Law Society of NSW in 2007 defining the roles of the legal representative. They are to assist their client in the proceeding and have to act in a non-adversarial manner. They are not advocates when they are in the mediation process. it was acclaimed by Hazel Genn that at least three-quarters of the settled cases were because of the co-operation and contribution of legal representatives. [16] Another journal article also concluded the fact the role of legal representatives is necessary only they have to change their method of advocacy to fit in the mediation proceeding.[17]

To decide whether there is any conflict between the adversarial system and mediation, so both of them has a different significance. For the adversarial system, the judge is there to decide the case and interpret the law. He is not there to form any law. On the various connotation of the parties, he decides on whose favour the judgement is to be given. This is the method which is very common and people have accepted that as they see this on televisions and other media platforms. Mediation, on the other hand, being a non-adversarial process is a more subtle and a quick process as the parties are made to sit on a table and a mediator then tries to solve their issue. Both of these mechanisms are a whole of a different process. Therefore it cannot be said that any one of them disturbs the procedure of another. The legislature of the UK has now accepted the final judgement given in the mediation proceeding as they refer to if they feel the case can be solved by mediation. However, if any of the party feels that the judgement is biased or is unhappy, then he can appeal to the high court of the same.

Conclusion-

Therefore it can be concluded that the recourse with the parties to be represented by their lawyers shall not taint the mediation proceeding but shall only help the parties and the mediator to come to a unanimous settlement. For parties to have a fair proceeding, they can and should take help of their legal representative and that is legal.

Letter of Advice

Our Ref: 250160 XXX Law Firm

Address:

3 July 2020

Dear Lauren,

Re: Implications After The Arbitration Process

  1. The dispute is between Lauren(L), the homeowner and Jules(J), the representative of the Perfect Paving(PP) company. L had hired PP to construct her driveway under some certain specifications to which PP agreed too. Due to the bad condition of the driveway, she paid them in extra and wanted the work to be done quickly. A month later, she noticed some cracks on the driveway. She called the PP and they asked her to go through the instructions they mentioned her to be careful about. In two months, the condition got worse and this time she called PP again and they promised to pay a visit but didn't. Counter to this, J acclaims that he did pay a visit that respective day but no one was there. Also, the condition of the driveway showed that it was been used heavily which is clearly mentioned L not to do. It's a customary practice of PP to handover a pamphlet called "Caring for Your Paving" which gives instructions on how to use them. However, L have sued PP for their shoddy work and breach of their responsibility.
  2. The reason why arbitration dominates litigation is because of the less complex procedure that it involves.[18] Businessmen and women are in a hurry to solve their disputes in a much faster way and without much of any publicity. The more time they spend in fighting the more damage it brings to their business. Hence because of its speedy trail feature and maintenance of confidentiality, it is much appreciated than litigation. Also, arbitrators incorporate much more specialized experiences. For example, the Victorian and New South Wales court have specialized judges in construction law disputes.[19] Not only that, but these courts also have the authority to transfer a part or full of the case to a Special Referee who gives his expert knowledge on the matter and resolves any technicality, if there.[20] When it comes to confidentiality so in a case[21] it was held that arbitrations should be heard discretively meaning discretive from the strangers if only the party consents too. Rest, the documents and information that was disclosed should not be used anywhere else except in the arbitration.[22]

The only advantage to Lauren, in this case, is for not going into mediation is that there was a breach of duty on either side and if this matter had gone into mediation, then it resulted in a settlement. However, being a tortuous act, this cannot be solved via mediation and hence arbitration was the best way to solve.

  1. As per the Commercial Arbitration act 2011, it consists of a detailed overview of how the arbitration procedure starts, with the composition of the tribunal, to its jurisdiction, and making the award etc. part 2 of the act talks about the arbitration agreement, part 3 talks about the composition of the arbitral tribunal which is only for institutional arbitration. Part 5 talks about the way the arbitration is conducted. As per section 10, the number of arbitrators is to be decided by the parties, failing to which shall ad-hoc is limited to one. While as per the subsection (2) of the Model Law, the number of arbitrators is set to three.

Discussing the benefits, as per the WA Arbitration Initiative: 2019 WA Arbitration Report[23], arbitration is less formal. It ensures pragmatism and efficiency, keeps confidentiality at utmost importance. Confidentiality is why parties choose domestic arbitration. Section 27E to 27Iof the CAA applies as per subjective circumstances. As was held in a case,[24] the courts are obligated to give orders allowing or disallowing the confidentiality clause if the arbitral tribunal has concluded or the tribunal itself disclosed the information.

On the limitations, so section 34 of the CAA gives very limited grounds where arbitral awards could be set aside. It only discusses where awards cannot be issued but not anything about if there is any mistake from the tribunal or any discrepancy in law etc.

  1. Given the matter between L and PP, they did appear before the arbitral tribunal and discussed the matter. Now the tribunal had appointed an expert to look into the driveway and report back to court. This was done as per section 26 of CAA. Part 6 deals with making an award and terminating the proceedings. So after the expert’s report, it shall be clear that what the actual cause of the crackling of driveway was. Under section 30, the tribunal shall guide for a settlement between L and PP, subject to section 31. If agreeable with the settlement, L and PP shall give their consents and then the court shall terminate the proceedings. The award given under section 31 shall be in writing and should consist the signature of the arbitrator/s, the reasons of the conclusion, the date and place of the proceeding, and handover a copy of the award to both the parties. Meanwhile, if either of the plaintiffs withdraws their motion, then the tribunal can terminate the proceeding, if not objected by the defendant, or both parties want to terminate the proceeding, or the tribunal finds the matter not worthy to carry further under section 32.

Now if L is not satisfied with the award granted above, then under part 7 section 34, she can set aside the award by submitting an application to the court with 3months for the final award of the tribunal on any of the grounds mentioned in subsection (2). For eg., the incapacity of the party, or invalidity of the arbitration agreement, the procedure of sending legal notice was not followed.

Conclusion-

Arbitration is an effective dispute resolution mechanism and not just domestically but internationally as well. This was a small dispute between L and PP and hence it would not take years to solve it out.

Bibliography for Mediation Law

Journals

Alexes Harris, Beth Huebner, Karin Martin, Mary Pattillo, et al, ‘Monetary sanctions in the criminal justice system.’ (2017) Houston, Tex.: Laura and John Arnold Foundation 1

Bruce R. Jacob, ‘Developing lawyering skills and the nurturing of the inherent traits and abilities’ (1983) (29). Stetson Law Review

Jean R. Sternlight, ‘Lawyers' Representation of Clients in Mediation: Using Economics and Psychology to Structure Advocacy in a Nonadversarial Setting’ (1999) 14(2) Ohio State Journal on Dispute Resolution 269

Online websites

Law Teacher, Inquisitorial and Adversarial system of law (Feb 2018) < https://www.lawteacher.net/free-law-essays/constitutional-law/inquisitorial-and-adversarial-system-of-law-constitutional-law-essay.php> 

Laws, Five steps to the mediation process (Dec 2019). <https://litigation.laws.com/mediation-process>

Hasan Sadik,  What Makes a Good Mediator? ( Sept 2018) <https://www.resolutionpeople.co.uk/what-makes-a-good-mediator/>

Pon. What Makes a Good Mediator? (June 2020). < https://www.pon.harvard.edu/daily/mediation/what-makes-a-good-mediator/>

Ravi Aswani, Stefanie Johnston, Pamela Milgrim and Lewis Mcdonald, UK VS US- A comparison of the mediation processes (May 2017). < https://www.skuld.com/topics/legal/pi-and-defence/us-vs-uk---a-comparison-of-mediation-processes/>

Hogan Lovells, Alternative dispute resolution in England and Wales (Oct 2017). <https://www.hoganlovells.com/~/media/hogan-lovells/pdf/client-note-on-adr-in-england-and-wales-2017.pdf>

Varda Bondy and Margaret Doyle, Mediation in judicial review: A practical handbook for lawyers (Feb 2011) <https://www.nuffieldfoundation.org/sites/default/files/files/MJRhandbookFINAL.pdf>

[1] Law Teacher, Inquisitorial and Adversarial system of law (Feb 2018) < https://www.lawteacher.net/free-law-essays/constitutional-law/inquisitorial-and-adversarial-system-of-law-constitutional-law-essay.php>

[2] Alexes Harris, Beth Huebner, Karin Martin, Mary Pattillo, et al, ‘Monetary sanctions in the criminal justice system.’ (2017) Houston, Tex.: Laura and John Arnold Foundation 1

[3] Ibid 1

[4] Vincent Luizzi, Appeal to the People's Court: Rethinking Law, Judging, and Punishment(BRILL 2018)

[5] Law Teacher, UK Criminal and Civil Justice System (Feb 2018). < https://www.lawteacher.net/free-law-essays/criminal-law/uk-criminal-and-civil-justice-system.php>

[6] Ibid 5

[7] Ibid 5

[8] Laws, Five steps to the mediation process (Dec 2019). <https://litigation.laws.com/mediation-process>

[9] Bruce R. Jacob, ‘Developing lawyering skills and the nurturing of the inherent traits and abilities’ (1983) (29). Stetson Law Review

[10] Hasan Sadik,  What Makes a Good Mediator? ( Sept 2018) < https://www.resolutionpeople.co.uk/what-makes-a-good-mediator/>

[11] Pon. What Makes a Good Mediator? (June 2020). < https://www.pon.harvard.edu/daily/mediation/what-makes-a-good-mediator/>

[12] Ravi Aswani, Stefanie Johnston, Pamela Milgrim and Lewis Mcdonald, UK VS US- A comparison of the mediation processes (May 2017). < https://www.skuld.com/topics/legal/pi-and-defence/us-vs-uk---a-comparison-of-mediation-processes/>

[13] Ibid 12.

[14] Hogan Lovells, Alternative dispute resolution in England and Wales (Oct 2017). <https://www.hoganlovells.com/~/media/hogan-lovells/pdf/client-note-on-adr-in-england-and-wales-2017.pdf>

[15] Varda Bondy and Margaret Doyle, Mediation in judicial review: A practical handbook for lawyers (Feb 2011) <https://www.nuffieldfoundation.org/sites/default/files/files/MJRhandbookFINAL.pdf>

[16] Ibid 15.

[17] Jean R. Sternlight, ‘Lawyers' Representation of Clients in Mediation: Using Economics and Psychology to Structure Advocacy in a Nonadversarial Setting’ (1999) 14(2) Ohio State Journal on Dispute Resolution 269

[18] Temitayo Bello, Why arbitration triumphs litigation. (Mar 2019). <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3354674>

[19] David Palser and Mallesons Stephen Jaques, Arbitration (1996) 47 Australian Construction Law Newsletter  

[20] Ibid 19

[21] Esso Resources & Drs v The Honourable Sidney Plowman (The Minister for Energy and Minerals) (1996)

[22] Ibid 19

[23] Brenda Horrigan et al, Arbitration procedures and practice in Australia: Overview (2020). <https://uk.practicallaw.thomsonreuters.com/16182164?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1

[24] Esso Australia Resources Ltd v Plowman (1985) 183 CLR 10.

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