This article has been written by Vignesh Raj, from Team LawSikho.

Introduction

While re-negotiation is always the first point of call when a disagreement arises in opposite parties to a contract, it is not often that the opposition parties in India are willing to enter into re-negotiations. The general psyche is that if we agree to negotiate, we will have to compromise on something. And compromise is not what people are willing to make unless they are compelled to do so. People want to stick to their opinions. It is not well accepted that there may be a possibility of arriving at a solution that can be mutually beneficial.

Things, therefore, move quickly into the other layers of the dispute resolution process. This is precisely where skilled mediators and mediation advocates can create wonders.

Mediation advocacy is more than just lawyering. The approach is not just to argue the case of the client but to arrive at a solution in a collaborative, consensus-building manner. It involves far more than just the practice of law or awareness of how contracts are enforced. It involves the ability to bring in solutions which would seem acceptable for the opposite party and thus, seem plausible to the mediator also.

The mediators themselves tend to be really senior advocates or judges or people who have years of experience behind them. And this is required, in order to be able to appreciate the nuances of the dispute on both sides. However, younger lawyers can take a step towards this path by skilling themselves in and working in the area of mediation advocacy.

How is mediation advocacy relevant for corporate lawyers?

If you are a corporate lawyer, securing mediation advocacy skills can be very advantageous. On the other hand, if you lack these skills, there are a few areas where you will struggle to bring results.

Firstly, as a corporate or a transaction lawyer, you will frequently be involved in drafting contracts and agreements. Rarely will you come across agreements where the clients are unwilling to adopt alternative dispute resolution methods.

In most cases in the current scenario, considering the time and cost of mediation, the dispute resolution clauses will be “med-arb” clauses. These will provide for layers of dispute resolution mechanisms: negotiation, mediation and arbitration, in that order (in fact, this is what you should be recommending to your client).

Unless you clearly understand how the mediation process works, you are unlikely to do an excellent job of drafting these clauses. Lack of clarity and specific provisions in such clauses can land your clients into trouble at the time when a dispute arises and such clause has to be invoked.

For instance, if the med-arb clause provides for mediation to proceed arbitration, but doesn’t provide for the appointment of the mediator at all, it will become an issue. This is because both the parties will want to bring in their own mediators and may find it difficult to agree to any mechanism of appointment at a time when a disagreement has already arisen. This means that since the mediation cannot be proceeded with despite the mediation clause being present, the dispute will proceed directly into arbitration, which can drag on for a year or more. Whereas mediation could have resulted in a solution in a few months.

This is why we have covered the aspect of how med-arb clauses are to be drafted and what care you need to take in this regard, together with the likely pitfalls in our Certificate Course in International Commercial Arbitration and Mediation.

Secondly, as a corporate lawyer, you will be handling a lot of pre-litigation related work. If you can double up as a mediation advocate, you may be able to sort and bring about a resolution to the dispute right at the mediation stage itself, with an outcome which is mutually acceptable for both the parties. Even otherwise, you may be able to help your client clearly lay down the points that they need to bring about at a mediation hearing, how to react to the other party’s proposals or how to respond to their reactions to your proposals. You may be able to help your client put forth his case persuasively since in mediation hearings, a lot of discussions happens informally and is drawn towards arriving at a solution as against merely refuting the claims of the other party as it happens in litigation.

How is mediation advocacy helpful for litigators or disputes lawyers?

Well, a lot of disputes would fall within the purview of the commercial courts established under the Commercial Courts Act, 2015. Section 12A of this Act mandates pre-institution mediation for all suits which do not contemplate an urgent interim relief.

You would be required to exhaust this remedy of mediation and only then, proceed with the institution of a suit before the commercial court in such cases.

Traditionally, disputes lawyers would be either litigators or arbitration lawyers. Mediation advocacy requires a very different set of skills and therefore unless these are acquired, litigators or arbitration lawyers would be required to take the help of someone who is skilled in mediation advocacy.

Secondly, many parties to arbitration proceedings are inclined towards arriving at a consent award. This works better for both parties because of the obvious benefits in terms of time and money.

Arbitration lawyers aren’t really skilled towards thinking in terms of negotiation driven or consensus-based proceedings because arbitration proceedings are shaped formally and require evidence to be presented.

Unless trained in mediation advocacy, arbitration lawyers may not be able to work in mediation proceedings naturally. It’s therefore an added benefit to an arbitration lawyer also to be trained in mediation.  

Thirdly, clients view the success rate of lawyers in terms of how fast the resolution is arrived at. Lawyers who can be really successful will be those who arrive at a resolution and who arrive at a resolution faster. As someone who is trained in mediation advocacy, you will be highly resolution oriented rather than litigious.

Think which kind of a lawyer you would prefer to be: one who asks for payment at each stage of a litigation proceeding and milks the opportunity by dragging those proceedings, or one who maybe charges higher at the initial stage, but is geared towards bringing a resolution as fast as possible and in fact, establishes a feasible channel of resolution for future disputes?

If you’re curious about how to acquire that extra element of skills which can enable you to function efficiently as a mediation advocate, in addition to being a corporate lawyer, an arbitration lawyer or a litigator, check out our Certificate Course in International Commercial Arbitration and Mediation. We provide our learners with enough simulation exercises which will mould your thinking into how mediation advocacy works so that when you have to deal with such a situation as a corporate or disputes lawyer, you will be prepared.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.