How mediators and lawyers can act collaboratively in mediation based on the interests and needs of the parties

Tania Almeida
Consultant, Teacher and Supervisor in Conflict Mediation. Founding Partner and President-Director of MEDIARE – Dialogues and Decision-Making Processes . Member of the Ethics Committee and Vice-Presidency of CONIMA – National Council of Mediation and Arbitration Institutions.

Adolfo Braga Neto
Lawyer, Mediator, Mediation Supervisor of the Mediation Sector of the Forum of Guarulhos, Technical Advisor of the Conciliation Sector of the São Paulo Court of Justice, UN Consultant, Chairman of the Board of Directors of IMAB -Institute of Mediation and Arbitration of Brazil and President CONIMA – National Council of Mediation and Arbitration Institutions

 

Summary

The fact that Conflict Mediation is in its initial stages in Brazilian culture requires, on the part of the mediators, careful attention with the contribution of information to the parties and to the specialists who participate in it, especially lawyers.

As the aid for self-composition between the parties is increasingly integrating the practice of law in our country, it is necessary to distinguish this practice from that carried out by the mediator, especially when both professionals act in the same case.

This article intends to highlight relevant aspects of teamwork to be carried out between mediators, mediators and lawyers, through cooperation between them, in Facilitative Mediation situations based on the interests and needs of all those involved in the conflict.


Facilitative Mediation

The effectiveness of using Mediation in different coexistence scenarios also made it possible to diversify work models that could meet the more specific demands of the parties or even of theorists dedicated to the topic. Offer a non-binding opinion (attribute of Evaluative Mediation), privilege the transformation of the relationship and communication between the parties (objective of Transformative Mediation), and help the parties reach agreements based on their interests and needs (character of Facilitative Mediation ) are possibilities that demand different postures of action by the mediator, the mediatees and their lawyers.

Mediation based on interests aims to satisfy them and is concerned with identifying them, as well as seeking to highlight the possibility of being served by the other integral part(s) of the negotiation process. Mutual, complementary or divergent, meeting the interests and needs of the parties is maximized when common objectives are envisaged, such as: responsibility for the well-being of children - in separations and divorces, harmonious corporate dissolution or identification of interest in the permanence of the business partnership – in business situations, the maintenance, rescue or creation of peaceful coexistence – in matters of international politics, or the preservation of a common good – in socio-environmental controversies.

As the human being who is unattended to his feelings and needs negotiates his affections through objective issues such as pecuniary or patrimonial gains, or even through the loss of these goods by the other, it is the mediator's task to help him identify his greater interest/need in a negotiation, that is, in what it fundamentally needs to be attended to. This primal interest or need, most of the time, is not part of what is being objectively negotiated since it is also underlying, as exemplified above, in the scope of subjective feelings and desires.

In Mediation focused on interests and needs, both the mediated, the mediators and the lawyers need to know what was identified by the former as their main interest or need so that they can be in unison in helping and caring for these mediated.


The multiple voices present in the dialogues that took place in a Mediation Process

In the course of a Mediation process between two or more parties, there are at least six levels of dialogue, expressed or not, occurring simultaneously:

  • between the negotiating parties, not only negotiating the present issue, but, in particular, past issues and feelings;
  • among the mediators who coordinate the work, identifying the best way to conduct it at each moment;
  • between the parties and their lawyers, seeking to redefine the usual quality of their relationship – from the passive position of being defended to the active position of being authors; from client advocates to legal advisors, respectively;
  • between the parties' lawyers and their professional practice, identifying the most appropriate legal advice;
  • between the mediated and their networks of relevance (friends and family), with which they establish tacit loyalty pacts that will need to be renegotiated throughout the Mediation;
  • between the mediated and the third parties involved, not present at the negotiation table, but who will suffer the consequences, or will receive the benefits of both what is agreed and the quality of the relationship that the mediated can establish in the future.


The multiple voices present in a dialogue between two people

In the course of a Mediation process between two or more parties, there are at least six levels of dialogue occurring simultaneously:

  • between the negotiating parties, who will not only be negotiating the present issue, but, in particular, past issues and feelings;
  • among the mediators who coordinate the work, who will be identifying the best way to conduct it at each moment (the solo mediator establishes this dialogue with himself or his peers outside the mediation meeting);
  • between the parties and their lawyers, seeking legal guidance for what is being negotiated and, at times, trying to identify the direction that the other party(ies) intend to give to the negotiation; it is often necessary for parties and lawyers to renegotiate, before the start of Mediation, the position they had been adopting until then;
  • between the lawyers of the parties, who converse silently with their practice; professional present identifying the most appropriate position for each moment, as well as talking with their previous professional histories, when they acted as partners or as antagonists in other cases;
  • between the mediated and their networks of relevance (friends and family), with which they establish tacit loyalty pacts that will need to be renegotiated throughout the Mediation;
  • between the mediated and the third parties involved, not present at the negotiation table, but who will suffer the consequences, or will receive the benefits of both what is agreed and the quality of the relationship that the mediated can establish in the future.

Being able to make each of the dialogue levels identified above even more complex, as well as expanding them in number, we believe that the willingness to visualize the place and narrative of each of the actors mentioned and to take care of their own participation in each of the aforementioned levels.


Putting yourself in the shoes of the parties and their lawyers

Even when initiated before legal proceedings have opened the dialogue between the parties, Mediation fulfills the difficult task of proposing redefinitions for some of our paradigms, prejudices and cultural beliefs.

A non-adversarial (win-win) process aimed at mutual satisfaction, Mediation beckons us with the possibility of partial satisfaction – neither total satisfaction nor total loss, an objective that is little in tune with adversarial resolutions. It gives us the possibility of authorship in all the proposed solutions and demands the identification of our possibilities in meeting the needs of the other, in the expectation that he will do the same. It gives us complete control over the process, as it allows us to choose and finalize it at any time, as well as allowing us to negotiate its procedures. It demands that we put ourselves in the place of the third parties involved in the negotiation, whose absent voice needs to have their needs equally met. It requests good faith and transparency of purpose, at the same time as it demands secrecy and confidentiality regarding the matter dealt with therein. It welcomes our past history with this other with whom we are now indisposed, and invites us, at all times, to make decisions aimed at the future. It widens our negotiation scope for alternatives not thought of before, but does not allow them to go beyond the margin of ethics or law.

During judicial proceedings, the task of redefining the aforementioned aspects must have the collaboration of the mediators and their lawyers who, in the universality of cases, are sought after to defend the rights of their clients. It is necessary for mediators and lawyers to redefine the demand and offer from a position of guidance in defense against someone who can harm me to a position of legal advice and support for what is being negotiated in collaboration with the other party. A positive feedback between client and lawyer is as necessary to obtain and maintain a defense posture, as it is to obtain and maintain a posture of legal advice and support, as demanded by the mediation. Clients will not be able to abandon the defensive posture against the enemy if they do not have the permission of their lawyers and vice versa. In the same way, they will not be able to distance themselves from the passive position of being defended to enter the active position of being authors, if both do not authorize this change.


Putting yourself in the shoes of mediators

Trained to enable listening, speaking and questioning, as well as to provoke reflection and stimulate an active and authoritative posture in the mediated, mediators also need to remain impartial even in situations that mobilize a lot of emotion or provoke identification with the parties.

Due to our human nature, we do not believe that neutrality is feasible, since the mediator's questioning is based on the repertoire that his worldview and paradigms make possible. This questioning should not, however, express values ​​or readings that may direct the parties towards certain solutions. For this to happen, it is necessary to actively and continuously care for the maintenance of a state of impartiality, that is, to take care of the equity of participation of the mediated, to maintain objective and subjective equidistance and not to take sides in relation to the themes and parties with which we are working. .

With special knowledge in human communication, negotiation techniques and a systemic view of the controversy, mediators have the expertise to facilitate dialogues in adversarial situations. It is in these aspects, and in the knowledge of how to conduct the Mediation process, that its competence resides. Confidentiality, impartiality, competence and diligence are ethical requirements. It is necessary to be attentive to what there is of verbal and non-verbal communication between the mediated, to the discourses that help to identify common, divergent and converging interests, to the imbalance of any nature between the dialogues - financial, cognitive, informative, emotional - for good drive this process. It is essential not to have a conflict of interest with the parties or with the mediated issue, not offer the knowledge of the original profession to advise the parties in their decisions, and not suggest or advise on decisions to be taken. By articulating all these ingredients, it is the mediator's exclusive task, in a Facilitative Mediation, to facilitate dialogue between parties so that solutions for what brings them to Mediation emerge from them. This is your strict and delicate area of ​​expertise.

The lack of professional knowledge to advise on the solutions envisaged by the mediated makes it essential to consult other professionals in search of legal and technical basis for the decisions to be taken. The indispensable legal advice, since no solution can harm the Law, makes the participation of lawyers essential. Lawyers must not only be aware of their clients' intentions to participate in a Mediation process, but also know the Code of Ethics and the Institutional Regulations that govern the practice of the elected mediator so that they can adequately guide their clients.

It is beneficial for the mediator to introduce himself, provide the necessary information, clarify the limits and scope of his work and, in accordance with the will of the mediated, keep the doors open for the participation of lawyers in Mediation meetings. It is essential that lawyers are informed about the interests of the mediated, identified in the Mediation, and that they monitor the progress of their posture in order to meet the interests of each of the mediated, thus being able to act synergistically with their eventual changes.

The mediator is responsible for writing, in the language of the parties, the total or partial agreement constructed by them. It is the lawyers of the parties who will have to give legal language to the agreement, if the matter requires ratification, or so the mediators wish.


Conclusion

In order for there to be a synergistic action between the mediator, the mediators and their lawyers, it is necessary that all of them become aware of the information mentioned above so that they recognize the numerous actors of the issue at hand, its complexity and social reach, in order to act in accordance with their function, the time of the Mediation and its purposes.

The need to redefine some of our cultural beliefs as well as redefine the usual quality of the working relationship between the party and the lawyer is essential to enable the genuine participation of all the actors identified in a Mediation process, an indispensable contribution to its effectiveness.

It is essential that mediators, mediators and lawyers recognize themselves as elements of a collaborative team, seeking to help the mediates to focus on their interests, to articulate their possibility of meeting the other's needs, and vice versa, and to legitimize their ability to peacefully resolve their own issues, mutually benefiting from this authorship.