PUBLIC AND PRIVATE JUSTICE- DISPUTE RESOLUTION IN MODERN SOCIETIES Establishing a Fair and Efficient Justice System
personality, by being aware of these issues they can aid mediation work to resolve the matter by removing the issue of style conflicts. 1
However, the overall use of negotiation techniques and the appropriate time and place for the use of them is an appropriate ethical consideration as could be the possibility of resolving an issue by mediation. The savings to the client consist not only of financial, but of emotional and social resources. Attorneys owe their clients a duty to consider such things in the conduct of their cases.
In addition to the ethical considerations, there are several very practical elements in mediation that improve client satisfaction and client relations.
a) Speed. A client goes to a lawyer to find someone who knows how to get something done. Implied in "getting something done" is getting something done as soon as possible. When successful, mediation resolves disputes much more quickly than will the process of litigation.
b) Understanding. The mediation process spends considerable time bringing the client along in the process of the negotiation and in evaluation and understanding of the positions and the case. As a result, following mediation there is a higher level of client understanding and agreement with the negotiated results or the failure to negotiate results. This leads to an increase in client satisfaction, cooperation and agreement to settlement. Even if no settlement of the claim is reached, engaging in mediation increases client understanding and satisfaction. If the case fails to settle and goes to trial, mediation is a positive influence on client perceptions as to what the attorney is doing. Many ADR procedures are designed to aid parties and their attorneys first to evaluate and educate with settlement only as a side effect.
c) Preparation. ADR methods, including mediation, are useful when settlement is not anticipated. In the complex or risky case, mediation is an excellent tool for creating and preserving a client's acceptance and support of the attorney regardless of the outcome at trial. As a client relations tool, especially in a case that "must be tried" (and that will be tried and that actually is tried) because of the issues, nature, difficulty or risks of the case, ADR is very important. Where client satisfaction is important, mediation is a useful tool.
d) Control. A study of federal courts (in USA) and court ordered ADR in those courts reflected that clients who were sent to the ADR track actually felt that they had more control than those who remained in the conventional litigation track.
For above mentioned reasons, mediation and other ADR procedures deserve consideration in every case from both an ethical and a client satisfaction regard. While not every case should (or could) be mediated, every case can be considered for appropriate treatment. From ethical point of view that would meet criteria of working in the best interest of client.
The five methods of negotiation are:
a. b. c. d.
Attack or fight. This type of negotiator is often called an aggressive negotiator. Appease or attempt to convert. This type of negotiator is often called a cooperative negotiator. Flee or attempt to evade the problem. This kind of negotiator is often called a distractor. Displace or analyze the problem. When a man is told not to come in to the office today because it has
burned down and responds by analyzing the changes in traffic patterns the fire trucks will have made, he is engaging in displacement. This kind of negotiator is often called an analyst. Truth seeking. This kind of negotiator is often called an idealist.