The role of the lawyer in mediation

The role of a lawyer in mediation is extremely important, and it is often up to him to decide whether the parties to a conflict sit down at the table, as well as the success of mediation itself. Therefore, a lawyer should have, apart from substantive knowledge, a range of so-called soft skills.

A lawyer is by definition a “warrior” and a “mercenary” who will fight on our behalf. This is generally accepted, because in our cultural area we usually go to a lawyer when “milk is already spilt” and the conflict has started for good.

Usually in such situations, the client’s primary expectation towards the lawyer is a brave and ruthless attitude, so as to win the case, because there is a war going on. This is all true, although such a zero-one system does not always work in reality.

Often the role of a lawyer in the course of conducting a case changes. From “warrior” it has to turn into a negotiator, and sometimes into a “midwife”, which we will explain a bit further in this particular context.  

Different faces of a lawyer

An ideal lawyer is therefore a person who, like a chameleon, can adapt to a changing situation, a dynamic court process and accompany his client in the course of resolving a dispute or conflict both inside and outside the courtroom. 

The ability to transform is particularly important for a lawyer, to whom the client entrusts his or her dispute with the expectation or order of the most effective (time and cost effective) solution. 

When accepting such an order, a lawyer usually offers his client at least two alternative paths: judicial (where he simply becomes a warrior attorney fighting on behalf of his client) or out-of-court (where he uses alternative methods to resolve conflicts). Both can of course intersect and overlap, depending on the efficiency of the lawyer and other persons accompanying the parties, e.g. the judge or mediator.

So let’s look at the different roles of the lawyer to whom the client entrusts his or her legal and economic dispute in order to find the quickest and most effective solution. It is interesting to note both the perspective of procedures and legal regulations within which the lawyer moves and the perspective of the so-called soft skills of the lawyer, which give him unusual flexibility in adapting to the dynamic situation of the dispute.   

Partner, negotiator, midwife.

One of the first actions taken by a lawyer in a dispute case conducted by him or her is to present various scenarios of action to the client, for and against particular paths of action and legal and business consequences of a given path. 

At this stage, a lawyer is not only a lawyer informing his client about possible methods of action, but also a partner of the client, helping him to make the most business-oriented decision on the future of the dispute. 

In the case of the choice of an amicable method, including negotiations, the lawyer usually takes the role of a negotiator. In the case of choosing a judicial path, the lawyer becomes a “warrior” with a clearly defined military position, usually expressed in a lawsuit.  

At this stage, a formal “corset” for a lawyer is, among others, Article 187 § 1 point 3 of the Code of Civil Procedure, according to which a claim should satisfy the conditions of a pleading and, moreover, contain information whether the parties have attempted to mediate or otherwise resolve a dispute out of court or, if no such attempt has been made, explain the reasons for their failure to do so. Thus, before a lawyer takes his or her role as a “warrior” in the courtroom, he or she should try to resolve the dispute amicably outside the courtroom.   

However, if a peacekeeping mission fails and the case goes to court, the lawyer, armed with knowledge and experience, is a “warrior” and fights on behalf of the client, according to a strategy agreed with him/her. A whole range of regulations and formal restrictions is provided for by the aforementioned code of court proceedings, which for a lawyer is a set of rules how this “war” is played out in court.   

In court, however, the roles of the lawyer may change again and the armour may be removed again. Well, the judge himself can contribute to this, who, according to Article 10 of the Code of Civil Procedure, is to aim at reaching an amicable settlement in all stages of the proceedings, in particular by persuading the parties to mediate.

Also in accordance with Article 210 § 2 (2) of the CCP already dealing with the hearing itself indicates that the court instructs the parties about the possibility of settling the dispute amicably, in particular by way of mediation.

Thus, a “lawyer-warrior” at each stage of the dispute must be prepared to change his or her role as a lawyer controlling the case on behalf of the client before the court, into a lawyer accompanying the client in possible negotiations or mediation. 

In this way, among others, a lawyer responds to a decision to refer a case to mediation, which the court, pursuant to Article 183 (8) of the Code of Civil Procedure, may issue at any stage of the proceedings. It is worth mentioning here that such a decision directing the parties to mediation may be issued at a closed session, and thus also outside the courtroom. Of course, according to the article regulating civil procedure, mediation is not conducted if a party has not agreed to mediation within a week from the date of announcement or delivery of the decision directing the parties to mediation.

In addition, the presiding judge may invite the parties to attend an information meeting on amicable dispute resolution methods, in particular mediation. An information meeting may be chaired by a judge, court referendary, court clerk, assistant judge or permanent mediator. In such a situation, the lawyer again moves from the role of a brave defender of the best interests of his client to a more diplomatic phase, namely mediation, the aim of which is to work out a joint settlement by both parties.

Pursuant to § 5 of Article 183 (8) of the CPC, before the first meeting scheduled for a hearing, the chairperson shall assess whether to refer the parties to mediation. For this purpose, the Chairman may, if it is necessary to hear the parties, call them to appear in person at a closed session. If a party fails to appear at an information meeting or an implicit hearing without justification, the court may charge the party with the costs of the ordered appearance incurred by the other party.

Thus, throughout the entire judicial process, in mediation or in out-of-court settlement negotiations, a lawyer must change his or her view of the dispute and think in business rather than legal terms. The aforementioned role of the “lawyer-accuser” refers to the whole range of soft competences that allow him to accompany the client during the various phases of mediation. Competences are more oriented to leading/supporting the client than to “arming”. This refers to skills such as active listening, asking questions that are not only inspiring to seek solutions, patiently waiting for answers, building partnerships through empathy and understanding. Empathy in this role not only refers to the emotional state of the client, but also to understanding the client’s situation on the market, building long-term relationships, PR of a business partner who, despite conflicts, is looking for solutions, not only in court, but also in a court of law. These competences require constant strengthening and learning. 

It is particularly important to be able to give constructive feedback without evaluation or interpretation. Changing the perspective and seeing the conflict situation from the other side can also help to broaden the perspective of the conflict. 

Such an attitude is usually expected by a client who, while agreeing to refer a case to mediation or seeking agreement through negotiations outside the courtroom, assumes the possibility to leave his or her usual court path (e.g. presented in a lawsuit) in order to reach an agreement. A lawyer, acting in the best interest of the client, should at this stage accompany him/her as a kind of “midwife” of the agreement concluded in mediation or a builder of the agreement concluded in the course of negotiations. 

Unfortunately, out-of-court talks do not always lead to a happy-end in the form of a settlement. In such a situation, the lawyer, like a chameleon, returns to his role as a “warrior”, while in his weaponry and the weapons he uses in his further fight he must take into account a very important aspect resulting from Article 183 (4) of the Code of Civil Procedure, according to which the mediation proceedings are not open, and thus the mediator, parties and other persons participating in the mediation proceedings are obliged to keep secret the facts about which they learned in connection with the mediation. The same usually applies to negotiations, during which a “non disclousure agreement” is concluded. It is worth remembering that the parties may exempt the mediator and other persons participating in the mediation proceedings from the obligation of confidentiality, which in a way “gathers” the parties in further arguments before the court.

The aforementioned Article 183 (4) of the CPC, in a situation in which the parties were not exempt from the obligation to maintain confidentiality, in its next paragraph confirms that it is ineffective to invoke in the course of proceedings in court or an arbitration court settlement proposals, proposals for mutual concessions or other statements made in mediation proceedings.

Another important role of a lawyer is emphasized at the stage of formulation of a settlement agreement. Here, the lawyer again “accompanies” his client in the professional paper transfer of all findings made outside the court. At this stage, the lawyer may also apply for a declaration of enforceability of the settlement agreement, where – for the moment only – the parties return to court to formally approve the content of the settlement agreement.

In this respect, in the case of an agreement concluded before a mediator, this procedure is governed by Article 183 (14) of the CPC, pursuant to which, if an agreement has been concluded before a mediator, the court, at the request of the party, will immediately conduct proceedings to approve the agreement. If the settlement is enforceable by enforcement, the court approves it by making it enforceable. At this stage, the court also verifies the quality of the lawyer’s work because, pursuant to § 3 of Article 183(14) of the CPC, the court refuses to enforce or approve an agreement concluded before the mediator, in whole or in part, if the agreement is contrary to the law or to the principles of social conduct or seeks to circumvent the law, or if it is incomprehensible or contradictory.