PUBLIC AND PRIVATE JUSTICE- DISPUTE RESOLUTION IN MODERN SOCIETIES Establishing a Fair and Efficient Justice System
WHETHER AND HOW TO MEDIATE – ETHICAL AND PRACTICAL CONSIDERATIONS
Except elements concerning particular kind of issue, There are a number of considerations for an attorney to make in deciding if, when and why to mediate. The two most common considerations are ethical and practical ones.
Attorney has duty to protect the best interest of his/her client, meaning that he/she has to represent client in order to establish clients rights in the fastest, cheapest, most practical way, in full volume, with proper material and personal satisfaction.
In that context: Is there an “ethical duty” of trying ADR? Questions about choosing and considering of choosing ADR, may be considered ad an ethical questions. The public considerations of the ethical duty recently become a current "hot issue" in some states in USA. The (perhaps overly simplistic) argument goes as follows:
ADR methods, and mediation in specific, are more likely to settle, than not to settle cases at the minimal cost and risk.
If case could be settled (in ADR) there’s no excuse for an extra judicial costs, that state has right to transfer to a customer.
If ADR has 80% chance of success, attorney should at least advise client about the option.
In Croatian judicial system it is hard (before noticed and analyzed ADR practice) to speak about percentage, but, considering some estimations and experiences, similar conclusions could be made. At this moment it’s only theoretical question, because of lack of available ADR programs (court annexed or private ones).
Attorneys could claim that they tried everything to protect the client’s interests (before engaging a court) with numerous letters, threats, meetings and other contacts with the opposite side (and/or his/her attorney) which opted for total ignorance of those attempts. I.e. if an initiative for the negotiations had no effect, how to presume that opposite side will suddenly take a reasonable course and accept to compromise in mediation? It is truth that negotiations are the oldest and original ADR method, but ADR is changing toward advancing negotiation techniques (and other ADR methods). Mediation is not the supplement for negotiations. ADR techniques have been emancipated to a dispute solving method.
One reason that mediation works very well in improving the negotiation process is because it helps defuse the natural conflicts created by differences in negotiation styles. Mediation is generally set up in a structure that isolates parties from style conflicts. The parties take fixed positions prior to the mediation meeting. The parties present their sides of the conflict with minimal interruption. The parties then retire to caucuses (separate areas) and the mediator shuttles back and forth with offers, positions, questions and information reworded in more neutral terms by the mediator.
The most common contemporary mediation process tends to take the negotiation style out of the process and reduces the matter to positional shifts and objective statements. Mediator, aware of existence of various negotiation styles could use it for an improvement of interaction and result. When negotiations hit a bottleneck or a seemingly impossible conflict of