The Role of Lawyers in Mediation: What the Future Holds?

If Alternative Dispute Resolution becomes a fashion, what will the lawyers do? Is there any role of lawyers in ADR? The role of advocate in outside court settlement is still crucial since convincing the court is not the only task for practising lawyers in India. Addressing the counsel role in mediation, they have to assist their clients since even statutory provisions of mediation run after the black letters of law. What is right in the eyes of law can not be compromised unless the contrary allows so. People ignorant of these black letters often end up accepting terms which go against their interest only because they disregarded the role of lawyers in mediation. Find out in depth regarding the role of lawyers in mediation and what the future holds for them.

What is Mediation?

Before jumping towards the role of advocate in outside court settlement, understanding the process of mediation in India is pivotal. Court litigation is the traditional mode of dispute resolution in India. However, this mode has been overburdened in the past few years which has tremendously slowed down the road to justice. Alternative Dispute Resolution is the escape route promoted by courts through Section 89 of the Code of Civil Procedure which encourages out of court settlement. During litigation, if court deems that facts of the case may allow so, alternate methods, usually mediation are suggested. This gives parties the chance to settle their case through a mediator who may suggest a middle ground which saves interests for both the parties of mediation.

Parties in a Mediation

Courts usually refer parties to mediation in family matters wherever there is some scope for amicable settlement. Family lawyers are more aware of the usual outcomes of mediation. It is usually in matters of divorce, child custody, disputes during family partition, etc. Hence, parties in a mediation process are usually people in a family related to each other through blood, marriage or adoption. The neutral party, i.e. mediator grants parties in a mediation a common ground to settle their dispute and suggests accordingly.

Can my Lawyer represent me in Mediation?

It may be noted that statutory provisions of mediation do not specifically restrict the counsel role in mediation. People are often afraid of the mediation process and have questions like “Can my attorney be present during mediation?” and “What does a lawyer do during mediation?”. The answer to the former is yes since nothing specifically restricts the presence of lawyers in mediation. The mediator may not allow the same while meeting parties in mediation privately and individually. Answer to the latter query regarding the role of lawyers in the mediation process has been explained below in detail.

What do Mediation Lawyers do?

The role of advocate in outside court settlement is often assumed to be null. What people often ignore is the fact that the black letters of law are not understandable to laymen but are governing authority for the ADR process. Coming back to mediation lawyers, they understand both mediation and the laws which may affect interests of the parties in a mediation. The role of counsel in mediation is to assist their clients educating parties of the legal outcome of what they say during the process.

Role of Lawyers in Mediation - Pre Phase

• Since a mediator is restricted from giving any legal advice to the clients, that is where the crucial role of lawyers in mediation comes into picture
• Inform regarding the legal principles applicable in the matter
• Get all the facts on the table before mediation begins
• Explain the parties what the options available to them are out of the said mediation process
• Prepare a brief of client’s version of facts indicating what he/ she aims at achieving through ongoing mediation

What does a Lawyer do During Mediation?

Make sure that the statutory provisions of mediation are paid due attention

Represent the parties in a mediation

• Role of lawyers in mediation may extend to negotiating on client’s behalf
• Confirm that the client’s rights and terms are being duly addressed
• Identify the major issues affecting the client’s interest
• To keep a watch over any legal setback the client faces during mediation
• The role of lawyers in the mediation process also includes suggesting an equitable solution for parties in a mediation proceeding

Role of Counsel in Mediation - After Process

• Identify what the client wants in a mediation agreement
• Confirm whether the mediation award includes all the terms discussed by the parties in a mediation
• Make sure the client signs the mediation agreement only after being satisfied with the terms
• If parties failed to settle the matter during mediation, role of lawyers in mediation ends and begins with regular litigation
• Make sure that mediation process does not harm the client’s rights while in court

The Role of Lawyers in Mediation - What the Future Holds?

The legal fraternity is often seen to be against the Alternative Dispute Resolution advocating that it may affect their ‘Right to Livelihood’. However, what has been discussed above clearly depicts what do mediation lawyers do. Hence, the role of lawyers in the mediation process can not be denied. Parties in a mediation must entrust counsel role in mediation since it is beneficial later as well if things are not settled and parties turn back to litigation in courts.