Aarta Alkarimi, partner at Chrysalis, shares her insights regarding the mediation process and what parties and legal counsel should know before they begin.
Obviously, legal counsel often forms an integral part of ADR. What role do they typically fill in mediation and how can their involvement contribute to the success of the process?
Legal counsel play a pivotal role in mediation prior to its start, during the process, and even beyond the formal closing of the mediation period.
Prior to the start of formal mediation, good legal counsel would explain the process and mentally prepare their client for what to expect. This is a particularly important period as it can greatly influence the proceedings. The journey preceding formal mediation can be a taxing period and there is often a lot of emotional energy that has been invested by the parties in their perceptions of the circumstances leading up to mediation. For this and several practical reasons, this is a crucial time for a lawyer to explain the structure and characteristics of formal mediation (and differences with routine commercial negotiations, arbitration, and litigation) to gauge their client’s receptivity to mediation, and to find and clear up any misconceptions about the process and intended outcomes.
At this pre-mediation stage, it is also crucial to make a client aware of certain techniques a seasoned mediator may use to assist parties in reaching resolution because such techniques may appear to be counterintuitive or be perceived as biased. If not explained beforehand, a client could possibly undermine their position during mediation or unintentionally derail it.
Whist the ultimate decision in selecting a mediator rests with the parties, seasoned counsel is well placed to narrow the list of suitable mediators because they often possess important “market intelligence” about candidates and their suitability. I believe this is one of the most important decisions that parties make when it comes to mediation. An experienced mediator who has the right technical and soft skills is pivotal to managing the process and guiding the parties to resolution.
Prior to the start of formal mediation, good legal counsel would explain the process and mentally prepare their client for what to expect.
Leading up to a mediation, the legal counsel’s other tasks may include articulating the matters that are of priority to their client, listing the pertinent evidence and facts in a clear and concise manner, coaching their client accordingly, and preparing the pre-mediation brief. It goes without saying that these tasks are best managed by the party’s counsel. However, a client’s emotional investment in the matter – understandable as it may be – can be a bit of a challenge to manage. Seasoned counsel is sensitive to this and is often well-placed to alleviate their client’s apprehensions.
During the formal mediation stage, an experienced counsel is patient, speaks little, listens more, and allows the mediator to steer the process. Good legal counsel understands the ultimate goal of mediation (being quite different to that of litigation, for example) and provides moral support, encourages their client to think creatively and outside of the framework of the contract that is in dispute.
Mediation is a discovery process where the mediator’s aim is to identify the parties’ fundamental grievances and find points of reconciliation and acceptable compromise. Very often, the parties only recognise what these are through the stewardship of a mediator who can instil trust in the early stages of the process.
During the formal mediation stage, an experienced counsel is patient, speaks little, listens more, and allows the mediator to steer the process.
At the conclusion of a mediation, counsel either draft the settlement agreement or – if drafted by the mediator – ensure that the agreement includes the required factual and legal elements to record the parties’ agreement into an enforceable legal instrument.
Given their overall knowledge of their client’s operations and goals, a trusted counsel is in a unique position to assist their client to think about the overarching goals and interests of their client’s business and prevent disproportionate focus on matters of principle or misdirected energy on the more emotive elements of the dispute.
By the same token, are there circumstances where the involvement of legal counsel is unnecessary or even detrimental to the process overall?
A lawyer who consciously or unconsciously approaches mediation with a “winner takes it all” attitude that is typically applied in arbitration or litigation may not possess the required skills to add value to their client in a mediation setting. Such a lawyer – as talented as they may be in a more contentious setting – may end up doing more harm than good. This inability to see mediation as a wholly different approach with an equally different set of goals may not be recognised going into the proceedings but can present itself during the process where the lawyer may, by habit, resort to tactics unsuitable in this setting.
Once a lawyer has explained the legal and commercial ramifications of any potential point of agreement to their party, the lawyer should pull back and allow the mediator to find common ground between the parties. While a lawyer’s role is valuable in certain parts of the mediation process, especially with respect to complex commercial and multi-party mediations, constant “hands-on” involvement is unnecessary. A lawyer who expects mediation to merely function as an abbreviated and cost-effective form of arbitration or a “short-cut litigation” is missing the point.
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An example given by an instructor years ago: A dispute was brought before a mediator by a contractor against a homeowner for prolongation costs. The homeowner required an extension be built onto their house for their terminally ill mother. The mother, unfortunately, passed away during the process of the construction. As a result, the homeowner no longer required the extension. The parties were at odds as to who was responsible for the delays. The claims and counterclaim for delays indicated that this had the potential of becoming a complex, protracted, and expensive dispute if handled through the court or an arbitration.
A mediation process resulted in the contractor purchasing the house from the homeowner on commercial terms acceptable to both parties because, through the mediation process, it was discovered that the homeowner no longer needed this house (much less the extension) given that the change in their personal circumstances now brought forward the prospect that they could move to another city. Mediation allowed for an “out of the box” solution that avoided an expensive, protracted and emotionally taxing litigative process that would likely have followed.
What advice would you give to less experienced legal counsel on how to have the strongest impact with their involvement in mediation?
There is tremendous value in learning mediation in an academic setting. Often, it is assumed incorrectly – even by senior lawyers – that a lawyer with legal training is inherently capable of switching gears and operating effectively in a mediation setting. In fact, it is often those well-crafted skills that are second nature to a seasoned litigator which can undermine mediation. Formal training in mediation complements the legal principles taught in law school with invaluable soft skills necessary for this type of dispute resolution. By my own experience, I see that these added skills can also provide a lawyer with improved efficacy in their more conventional role.
Aarta Alkarimi, Partner
Tel: +1 917-562-5722 | +971 50-313-1493
Aarta Alkarimi is a seasoned lawyer, international arbitrator and accredited mediator with significant experience advocating and adjudicating matters pertaining to disputes on large-scale and complex construction, infrastructure and engineering projects around the world (including major transnational projects). Her list of clients includes governments, semi-government and publicly held companies, and private entities for matters pertaining to constructioninfrastructure projects and real estate including:
- One of the world's longest trans-national crude oil pipelines
- Various utilities networks
- Major airports
- Stadiums
- High-rise towers
- Schools
Chrysalis is a boutique legal consultancy located in the UAE with an affiliate office in New York collaboratively serving a diverse and global client base including small and large corporations, private businesses, government entities, NGOs and individuals in various areas.
