Role For Lawyers In ADR?

Lawyers are backbone of any judicial system .Lawyers can not only fight for their clients but they can
also suggest better alternative of any judicial process.ADR id the best alternative for resolving any issue
but in this ,the lawyer is the one who can insist people to not to go for judicial process and resolve issue
by the method provided in ADR process. More generally, “Civil Justice” aims to promote judicial
cooperation among the 27 EU Member States. Many lawyers still favor mediation ADR approach, but it
does not take full advantage of what a mediator can do. Mediators can enhance a lawyer’s ability to
negotiate in many ways. A mediator can, for example, improve communication between parties by
conveying messages or explaining what an offer means .

Whatever type of lawyer you are in terms of your practice area, every attorney has the ability to be
involved in the ADR process. It is easy for us to think that ADR is purely for those litigators amongst us
and has no relevance for any other attorney.

The role of the attorney in ADR comes at the very earliest stage when parties are still happily dealing
with each other, cementing a particular deal and at the contract stage. The contract can be a mega-
commercial transaction, a consumer’s transaction or the sale and purchase of real estate. Whatever the
underlying transaction, ADR is an essential tool in every lawyer’s toolbox to be able to draft an
agreement that looks to the eventuality if this happy marriage between the contracting parties ever
goes sour. Therefore, the appropriate clause to add into the contract can have far-reaching effects upon
how the parties will resolve their differences should any disputes ever arise.

Before considering the type of clauses that can be used, pe rhaps we should go back to basics and just
remind ourselves of the various methods of ADR that are available, and what the attorney’s
responsibility is in respect of ADR.

The nature of the ADR process and the roles and skills of lawyers

The key roles that lawyers can play in the ADR context were identified as ADR practitioner, legal
representative for parties engaging in an ADR process, provider of community legal education about
ADR, or supporter of participants in a collaborative law process. Whether the role of the third party to
the other parties in dispute in an ADR process is facilitative (e.g. mediation), advisory (e.g. conciliation)
or determinative (e.g. arbitration) has an impact on the role that a lawyer might usefully play. For
example, some submissions suggested that legal assistance is more important in facilitative rather than
in advisory or determinative processes because the neutrality of the facilitator’s role prevents them
from providing legal advice to a disadvantaged party. Others saw le gal assistance as potentially counter-
productive to a facilitative process, because it brought an undesirably legalistic approach to a process
that is designed to be non-adversarial and to address underlying conflict issues that may not be legal in
nature.

Submissions unanimously agreed that it is vital that a lawyer be clear about the role he or she is playing
in an ADR process. For example, if acting as an ADR practitioner in mediation, the lawyer should be

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impartial and thus avoid advocating for either party. However if acting as a lawyer for a disadvantaged
client, the role might include explaining the nature of the ADR process, ensuring that the process is
conducted fairly, advising on the strengths and weaknesses of the client’s case, and ‘reality test ing’ any
settlement options against the likely outcome if the matter were litigated. Submissions revealed that in
practice these roles may not be so clearly defined, with ADR practitioners in facilitative processes
sometimes providing an opinion on the likely outcome of a matter if it were to be litigated.2 The
submissions stressed that to play their role in ADR effectively, lawyers need more than just knowledge
of the law and familiarity with legal issues. They need to have knowledge of the particular type and
model of ADR and the skills to enable them to use ADR processes to the benefit of their clients, for
example an understanding of how and when to use different negotiation styles.

Examples of types of matters and areas of law where lawyers have successfully played roles to assist
clients on a pro bono basis :

The following are suggestions for types of matters and areas of law where pro bono legal resources have
been, and may continue to be focused usefully, as either ADR practitioners or advocates for p arties, or
both. They are drawn from the case studies provided by existing pro bono ADR schemes, and through
other consultations and submissions.

 Complex civil proceedings involving self-represented litigants

 Disputes within and between Indigenous communities;

 Disputes within and between not-for-profit organisations;

 Small claims matters in courts;

 Family law (specifically the Co-ordinated Family Dispute Resolution Pilot and disputes about children
and property);

 Disputes between or involving small business;

 Estate disputes;

 Assisting parties to make agreements resulting from ADR processes binding/enforceable by drawing
up agreements or seeking consent orders;

 Some employment related disputes (including discrimination and harassment); and

 Collaborative law practices.

Power imbalance and understanding and addressing the issues that affect people experiencing
disadvantage

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 An issue raised in the Discussion Paper was how, and to what extent, any power imbalance between a
marginalised or disadvantaged individual and the other party might be addressed. Various methods and
techniques were suggested for both ADR practitioners and/or lawyers acting for a party.

It was suggested that effective ADR practitioners and lawyers will have a strong general knowledge
about the legal issues that affect people experiencing disadvantage and the types and sources of their
disadvantage, but that the actual independence, professionalism and skill of the ADR practitioner may
be the most important factors in ensuring a fair and effective ADR process.

Significantly it was also suggested that it is not possible to equalise other aspects of entrenched
disadvantage relating to a client’s circumstances and that sometimes a determinative process may best
serve the interests of the client .

ADR that incorporates relevant support services

Several submissions highlighted the positive outcomes for people experiencing disadvantage when ADR
is delivered as part of a model that incorporates various support services, not just legal services, such as
the Coordinated Family Dispute Resolution Pilot.3 It may be that similar levels of cooperation are
possible and necessary in other areas of need, and that lawyers acting pro bono can contribute
effectively within a coordinated support model.

Where only one party can afford to pay

Most submissions expressed the view that where only one party can afford to pay, the ADR service
should be provided free of charge to both parties to avoid a problematic perception of bias against the
party who cannot afford to pay. However no submissions directly challenged the view that it would be
preferable to have one party paying than have no mediation at all. An option raised to resolve this issue
was to require the party that can afford to pay, to make a contribution to the cost of the ADR service
rather than directly paying the ADR practitioner.

The role of counsel in ADR, as in litigation, is to represent the i nterests of the client persuasively and
ethically. In addition to duties under the Legal Profession Act, the Law Society Rules and the Professional
Conduct Handbook, which apply to both ADR and litigation, a lawyer will use different approaches and
skills as counsel in the ADR setting.
This is so for two reasons:
1) the focus of ADR is more on the client's underlying interests than on the goal of succeeding in
litigation (which may or may not be consistent with those underlying interests), and
2) the client and counsel take responsibility for decision-making and resolution of the dispute, rather
than delegating that responsibility to a third-party decision-maker.

1. What should a lawyer do and not do in mediation to achieve a client's objectives?

Litigation counsel is both an advocate and an officer of the court. There is a parallel in mediation since
counsel both advocates client interests and helps advance the mediation process. Certain lawyer skills
that may be extremely effective in litigation, however, are counter-productive in mediation — in
particular, any that reduce the likelihood of consensual decision-making. The key to mediation is

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communication and understanding. Persuasiveness and advocacy play an important role, but it is the
clients, not the judge, who must be convinced.
For example, the use of closed questions — a cross-examination or discovery style — will elicit little real
information about the other participants' needs in settlement and, worse, may create an atmosphere of
anger or defensiveness that shuts down the exchange of ideas or information, sometimes even resulting
in breakdown of the mediation. Effective mediation counsel will ask open questions that allow others at
the table to provide information about needs and interests that will later be useful in reaching a creative
settlement.
Likewise, attentive listening without interrupting tends to encourage similar behaviour on the other side
and moves the participants toward settlement more quickly. Counsel in mediation need to be prep ared
to acknowledge the interests and points of view of the other participants, which does not necessarily
mean accepting the legal positions or solutions proposed to resolve the dispute.
Separating understanding from agreeing is a useful concept, as it can aid in developing a productive
working climate. At the same time, counsel can and should put forward the client's needs firmly and in a
forthright manner.
Another element of style is how forceful counsel wants to be in mediation on behalf of his or her own
client. This will depend primarily on the client's needs going into mediation. Confident or settlement -
minded clients may prefer that the lawyer be conciliatory from the outset. This client may also take a
more active and vocal role during the mediation. Anxious or timid clients, on the other hand, may need
a lawyer who will take a strong stance, and may be less comfortable participating, particularly in the
beginning. The role of counsel and client in mediation should be canvassed with the client prio r to
mediation. The same comments apply whether counsel are present at the mediation or are advising
between sessions, and may indeed assist in deciding whether counsel will be present at mediation.
There are other duties falling on mediation counsel, such as assisting the client to be reasonable when
potentially productive settlement proposals are received from other participants. This is one way a
lawyer responsibly advises any client on bona fide settlement proposals, whether in litigation or
mediation.
However, the momentum for settlement by agreement is greater in mediation because it is the goal of
the participants. If counsel does not have a client seriously consider settlement at the right moment, the
timing is lost and settlement will not result. Without settlement, the time and money spent in mediation
will appear to be less than productive. The most likely result is client dissatisfaction and one or more of
the participants may conclude that settlement is not possible in any circumstances.
Mediation counsel's role in assessing settlement may therefore need to extend further than when the
trial is just around the corner and the client's motivation for settlement may be solely based on risks and
expenses of going to court rather than on other underlying interests.
2. Withholding information: what does "full disclosure" mean in mediation?
Litigation counsel, as officers of the court, have a duty not to mislead the court. By extension, the same
duty should apply to mediation negotiations, if for no other reason than that an agreement may be
attacked and potentially set aside if there has been misrepresentation. More importantly, the goal of
mediation — an agreement that is mutually interest-based — requires disclosure of all information that
is relevant to informed, consensual decision-making. Settlement based on misrepresentation or less
than full disclosure is unlikely to address the interests of all participants, since needed information is
missing or even wrong.
A more specific question is what approach to take on production of documents if mediation clients have
not been through the discovery process. Some mediators prefer to meet only after discoveries have
been held. Unfortunately, this may seem contradictory to the client who wishes to resolve matte rs out

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of court in an expedient and hopefully less costly way. What then is counsel's best approach with
respect to disclosure of documents and the client's interests and needs?
Initially counsel should ensure that the Agreement to Mediate addresses this question. Many
agreements specify that full disclosure will take place, but do not define what full disclosure is. Are all
documents needed, or only enough to establish the necessary information? Will the clients produce
years of bank records or company reports, or will a summary suffice? The answer often depends to a
large extent on the relationship among the participants.
If the participants are of similar levels of sophistication, and particularly if they have shared financial
information and decisions throughout the course of their association, or if there is a high level of trust
between the participants, they may feel no need to produce documents at mediation. They may be
comfortable acting on the basis of their shared common knowledge, often summarized in documents
that clients and counsel have prepared for mediation. There may also be situations in which, for any
number of reasons, the participants do not wish to make full disclosure, and all participants are in
agreement about this. However, counsel may want to be cautious about advising in these
circumstances, and the Agreement to Mediate should set out that the participants have agreed that full
disclosure need not take place.
Particularly if the matter is complex or highly litigious, counsel may want to discuss disclosure provisions
with the other counsel prior to the mediation, either by telephone or in a preliminary planning meeting.
Such a meeting can also deal effectively with any other process-related matters that may enable the
mediation to proceed more smoothly and efficiently. Mediation counsel may want to be proactive in
arranging such a meeting, particularly if there is a suggestion from the mediator that an initial meeting
would be useful.
3. What is the counsel's duty toward an unrepresented participant at mediation?
Presumably the duty is similar to that of counsel toward an unrepresented party at litigation: that is, not
to take advantage of that party in any way. Similar to the judge in court, the mediator will presumably
ensure that the unrepresented participant understands the process, is comfortable proceeding and has
full opportunity to present his or her side of the story. The procedural guidelines set out in section 1
above apply, but even more so if a participant is unrepresented.
Above all, counsel cannot advise the unrepresented party about the law, and for counsel's own
protection, he or she should do the utmost to ensure that the unrepresented participant obtains legal
advice before signing any agreement. It may be at the stage of generating solutions that the mediator's
job will be the hardest with the unrepresented party, and counsel should be willing to allow some
process assistance from the mediator in this instance, as long as the assistance remains procedural and
does not move into the substantive areas of agreement.
4. "Unfair agreements": what is mediation counsel's duty?
Counsel present at the mediation will usually discuss the terms of emerging settlement proposals in a
separate meeting with the client during the mediation, either with or without the mediator present
(often referred to as a caucus). This enables counsel and client to discuss privately counsel's legal
opinion and the client's interests and needs, and to assess the costs and the risks of accepting or not
accepting the proposed settlement terms. Usually by the time agreement has been reached, if the
participants are ready to commit, so are their lawyers.
When counsel is not present at the mediation, however, the situation may be different. The participants
may change their points of view or their perceptions of what they need during the mediation as a result
of what they hear and discuss. Counsel has not been present to make this transition with his or her
client. If the resulting agreement is "fair" within counsel's definition, there is usually no difficulty, but if
he or she feels that the agreement is unfair, it can result in a stalemate with the client.

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If the emerging agreement is unfair because of one party's inability to negotiate or lack of expertise, it is
incumbent on counsel to assist the client in understanding the ramifications and discuss ways of
remedying the situation that the client can bring back to the mediation. If the participants have unequal
knowledge or negotiating skills that cannot be adjusted in mediation, a responsible mediator may
suggest an adjournment to allow both participants to obtain legal or financial advice on a particular
point. Counsel can be extremely useful in assisting the client to obtain the information or assistance
needed and to return to mediation with a new or more confident approach.
If, however, the emerging agreement appears unfair in law, but is addressing the participants' needs or
principles that are important to them, experienced mediation counsel will canvass the reasons, rather
than automatically reject the agreement.
If after discussion the agreement is to proceed, counsel may want to ensure that an explanation is
included in the written agreement, much as family law counsel would if drafting a child suppo rt order or
agreement that differs from the federal guidelines.
If counsel is still uncomfortable, but feels that the client understands the ramifications and wishes to
sign the agreement, he or she could consider taking the client's signature on the agree ment, but also
writing a confirming letter to the client setting out the advice that was given and the client's personal
reasons for accepting the agreement. In an extreme case, counsel may want to propose that the client
should get a second opinion before signing an agreement. All of these process solutions may assist
creative mediation counsel either to develop safeguards that will make the agreement more acceptable,
or to convince the client that some adjustment should be made.

APPROCHES OF ADR AND INVOLVMENT OF LAWYER IN THAT

Negotiation

Many people disregard negotiation as an element of the ADR process. But why?

Negotiation is an attempt to settle a dispute as an alternative to litigation. Many of us practice

negotiation without even thinking of what we are doing. But the competent attorney will prepare his
negotiation exercises as meticulously as he would his submissions and his preparation for going to court.

Much negotiation is done in correspondence with time to prepare a response to a letter, but there is
nothing better than face to face negotiation.

How you prepare for the negotiation process and how you conduct the negotiation process will
determine how successful you are going to be?

I would suggest that every attorney needs to work out the best alternative to a negotiated agreement
(BATNA) and, also the worst alternative to a negotiated agreement (WATNA).

For example with an injury case, you have looked in Kempe & Kempe and you know that the particular
value of an injury is X and therefore you may say that your best alternative to a negotiated settlement is
X and that you will accept nothing less. That may be right, but I would suggest that that is not the
correct way of preparing for your negotiation simply because there are no parameters under which you
are conducting the negotiation.

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What would happen if your opponent came up with a figure which was ten per cent less than X? Would
you dismiss it out of hand? Would you consider it with your client? Is it within the range of your BATNA
and WATNA?

Of course, you can always resort to the old form of negotiation and one which I have heard used many a
time. Picture this:

1. Plaintiff’s attorney invites defendant’s attorney to his office for a 3 o’clock negotiation;
2. Defendant’s attorney arrives at 2.55pm and is kept waiting until 3.15pm;
3. At 3.14pm, secretary gives defendant’s attorney cup of tea filled to the brim and lapping into
the saucer;
4. Plaintiff’s attorney goes to greet defendant’s attorney who, having nowhere to put his cup of
tea, is awkwardly placed and splashes tea all over himself;
5. Going to the attorney’s office, defendant’s attorney is placed at least three feet from the edge
of plaintiff’s desk in the lowest possible chair that can be found;
6. Plaintiff is in a position of dominance because of his height; defendant’s attorney is covered in
tea. Who has the advantage?

Negotiation requires attorneys to be imaginative and innovative with regard to a settlement, and if, as a
negotiator you can develop these qualities, then you will probably have what it takes to become an
effective mediator because the skills of a negotiator are important for mediation.

Before leaving negotiation, let me just say that in Bermuda I am impresse d that there is very little horse-
trading in a negotiated settlement. It seems to me that those attorneys that I have dealt with have been
clear as to their instructions and the negotiation proceeds without the usual bartering that one has been
accustomed to in other jurisdictions. That is not to say that horse-trading is not an advantageous way in
which to negotiate any settlement – your client might require you to do so. To be effective, however,
and to maintain credibility with your peers, being properly prepared for the negotiation process is
essential and the lawyer will play a very important role in the negotiation process which is, of course, all
part of ADR.

Arbitration

Perhaps a bit of historical background to arbitration in Bermuda would be helpful.

The modern Acts that we have in Bermuda are the Arbitration Act of 1986 and the International
Conciliation and Arbitration Act of 1993. The 1986 Act is referred to as the "domestic" Act and the 1994
Act as the "international" Act.

Domestic arbitrations in Bermuda have been ongoing for many years. They tend to be of a construction
nature, that is in the building industry, or they are real estate in nature, often resorted to as a result of
difficulties in a sale and purchase usually on payment of real estate commission. There are also those
real estate arbitrations dealing with rent review clauses in leases, although not as common in Bermuda
as they are elsewhere.

These arbitrations have been the domain of mainly the Chamber of Commerce and the architects,
engineers and surveyors who are typically appointed to sit as arbitrators.

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I am surprised that more lawyers are not appointed as arbitrators in these domestic disputes as it
affords great training for what the island has long been striving for, and that is to make Bermuda an
international commercial arbitration centre.

As I have said, in domestic disputes the lawyer can be appointed as arbitrator, but more typically the
lawyer tends to be involved as the counsel for either the claimant or the respondent. The sad fact of
arbitration these days is that it has become an absolute mirror of litigation with very little saving; in fact,
it probably costs more than Supreme Court proceedings and the only thing that the parties gain is
privacy and a possible saving of time.

On the international scene, Bermuda’s attempt to get into this arena has been well documented.
However, for those that are perhaps unfamiliar, the process probably started in 1989 when the former
Attorney General Walter Maddocks and others, on invitation from the LCIA who had held a conference
in Bermuda, decided to move the legislature to introduce arbitration legislation which would
incorporate the UNCITRAL Model Law. To cut a long story short, in 1993 this became reality with the
passing of the International Conciliation and Arbitration Act 1993.

At that time, Bermuda had the framework of the legislation and was one of the few jurisdictions in the
world who had adopted the Model Law and who had resisted the temptation to tinker with the Model
Law. Famously, at the time Singapore, who had enacted and adopted the Model Law somewhat earlier
than Bermuda, had decided that they were going to put an embargo on foreign attorneys attending in
Singapore for arbitrations and as a result there were very few international arbitrations in Singapore for
a long time.

Bermuda has no restrictions on foreign attorneys attending Bermuda for the purpose of an international
arbitration, and is naturally well placed geographically to be the neutral venue for any arbitration which
might take place between Europe and the United States. Unfortunately, although international
arbitrations are on the increase, they barely reach double figures on an annual basis. Why is this?

We have a Chartered Institute of Arbitrators, Bermuda Branch, the Chairman of which is Jeffrey
Elkinson. The Chartered Institute promotes training for would-be arbitrators and qualified arbitrators,
and also acts as an appointing body in the absence of any provision in any contract or agreement for
arbitration. It was Jeffrey Elkinson, and others, who led the cause for a dedicated arbitration centre in
Bermuda because of what had been heard on the international arbitration circuit.

Typically, arbitrations are held in hotels that can provide 24-hour room service, 24-hour secretarial
services and dedicated rooms. Unfortunately in Bermuda, the experience of some who have undertaken
arbitrations here did not confirm that Bermuda had 24-hour room service and the full gamut of
secretarial and support services.

Since the international arbitration centre has been up and running I do not believe that it has actually
held an arbitration, although interested users from abroad have been to visit it but still there have been
no moves to hold international arbitrations there. Perhaps other venues are being preferred or it is
insufficient for the needs of the disputing parties.

There is tremendous competition for Bermuda from New York, London and Paris, which all have world -
renowned and established arbitration organisations, panels and personnel.

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We can all be ambassadors for promoting Bermuda as an arbitration centre, we should not just leave it
to the Chartered Institute of Arbitrators to promote arbitration here. If we want to participate in
arbitrations and we wish to be appointed as arbitrators or gain instructions as counsel in arbitrations,
then we need to get out and market ourselves.

The best way is for us to talk to our colleagues who work in the corporate practice area or those that are
in commerce. Why? Because it is they who have the primary responsibility of gaining arbitration work
for Bermuda. I go back to the beginning of my talk and reinforce the point that it is the corporate
attorneys who will make the difference.

Attached is a suggested clause which can be inserted into commercial agreements, or can be made
available by the litigators amongst us to be handed to our corporate colleagues when they come
running at two minutes to five on a Friday afternoon wanting a clause.

This is not the definite clause and I stress that, for it to be very effective, consideration must be given to
the type of industry or commerce that the parties conduct; to identify the qualifications of a proposed
arbitrator; to identify the experience of the proposed arbitrator.

Although the arbitration clause will form a miniscule part of the overall commercial agreement, it may
be worthwhile including in the arbitration clause the mechanics and procedure for the way in which the
early stages of the arbitration are to be conducted and to grant specific powers (outside of the Act or
any rules governing the arbitration) which could be innovative and time and cost saving.

Try to avoid extensive discovery at all costs! This is perhaps foreign to litigators who thrive on the
investigation of paperwork but sometimes the discovery process gets in the way of the dispute!

Whilst in the above example the Chartered Institute of Arbitrators, Bermuda Branch, is the nominated
appointing authority, this can be another organisation such as the Bermuda Mediation and Arbitration
Association or the President for the time being of the Bermuda International Business Association. These
organisations have access to and the ability to provide a register of suitably qualified arbitrators. Above
all, one is looking to appoint someone who can be impartial and efficient.

Even if you as a lawyer do not get appointed as the arbitrator you may still be appointed by one of the
disputing parties, or in an international arbitration you may even receive instructions to act in the
registrar/facilitator capacity.

As I mentioned above, arbitration has become a mirror of litigation. It needs to be shaken up if it is to

remain a viable alternative to the court process. In my view, lawyers can move that process forward by
being innovative in dealing with the arbitration process. Do not just go along with the usual format of
directions if indeed there is a way of getting to the heart of the dispute more quickly.

Mediation

Mediation has become the buzzword of the late 90s and of the year 2000. We in Bermuda, a jurisdiction
based upon the English common law, have probably become more aware of it in the last three or four
years than had previously been the case. I refer of course to the sweeping civil law reforms in England
spear-headed by Lord Wolfe, and now commonly referred to as the Wolfe Reforms. Whether any of

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those reforms will be implemented in Bermuda remains to be seen and I can only echo what has been
said in the past by Narinder Hargun – let’s wait and see how they pan out in England and then perhaps
we can cherry-pick the ones for Bermuda.

However, one of the reforms – mandatory ADR – is something that we may wish to consider in
Bermuda.

Let us just take a moment to look across the water to North America. In Canada I understand that
mandatory mediation has been adopted and has moved on from a pilot scheme of some years ago
where every other newly issued action was immediately sent to ADR of some kind.

In the United States, mediation is becoming the flavour of the moment and many judges in many of the
courts are turning their case conferences into mediation sessions in order to try and bring the parties to
an understanding.

Towards the back end of 1998 there was a significant mediation which has resulted in the largest
settlement by the Equal Employment Opportunities Commission (EEOC) and involving the Mitsubishi
manufacturing plant in Normal, Illinois. The claim arising out of an EEOC investigation into sexual
harassment allegations resulted in a lawsuit being filed in 1996 by the EEOC on behalf of all women who
may have suffered harassment at the Mitsubishi plant. The complaint alleged physical and verbal
harassment against women dating back at least six years and, in addition, to retaliation against those
who went to management with their problems. Male co-workers who tried to help were also allegedly
subject to abusive behaviour.

The allegations were of the worst kind and involved physical abuse, both in the workplace and at social
functions organised by Mitsubishi.

It was alleged that the harassment stemmed in part from the training Mitsubishi managers received in
Japan where, it was asserted, the managers were treated to sexually explicit entertainment by
Mitsubishi officials. It was alleged that this fostered an atmosphere in which male employees widely
believed that management would tolerate abusive practices against women.

Not only were Mitsubishi faced with the EEOC investigation and the EEOC lawsuit, but in addition,
twenty seven plaintiffs decided to issue their own lawsuit. One can imagine that this was a public
relations nightmare for Mitsubishi. The press were crawling all over the story like bees to a jam pot.

Mitsubishi became even more pressured when independent Mitsubishi dealerships were threatened
with participation in the suit, and in fact, the dealerships then threatened to end their relations with
Mitsubishi because of the extreme publicity and loss of valuable vehicle sales.

So in the scenarios that we have had so far, how would this play out if this matter was in Bermuda, and

1. The matter went to the Supreme Court;

2. A negotiated settlement occurred;
3. The matter went to arbitration;
4. If the matter was mediated.

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In desperation the matter was referred to mediation which resulted in the largest cash settlement in any
EEOC sexual harassment case, with Mitsubishi paying $34 million into a settlement fund to be
distributed amongst eligible employees. The distribution of the awards was based upon five claimant
tiers defined to approximately reflect the relative severity of the eligible claims.

The mediator then moved to determine the criteria for eligibility in each of the five categories.

The breakdown of the settlement payments was as follows: 7 women received $300,000 each; 54
women received $225,000 each; 104 women received $125,000 each; 113 women received $40,000
each; 208 received $10,721 each.

In addition to the monetary settlement, there was put in place a structure for improving the quality of
the work environment. This involved a zero tolerance policy; the setting up of harassment prevention
programmes; the training of supervisors; and the appointment of a three -member panel of outside
monitors to ensure compliance.

A complaint mechanism was set up to encourage employees to come forward:

 An investigation of all complaints of harassment was to take place within three weeks;
 To report its findings and plan for remedial action on all complaints seven days thereafter;
 To maintain its twenty-four hour hotline for anonymous complaints;
 To take seriously all of those anonymous complaints.

The benefits of the mediated settlement resulted in positive publicity, not negative; the ability for the
parties to work towards a settlement together; it was their settlement and was not imposed upon them
and the parties designed a future policy which could never before have been contemplated.

Although this is a mediation of a major case involving a major international conglomerate, many such
organisations insist that any dispute should be mediated and that’s it!

Why do they do this?

Many companies with household names such as Reebok, Nestle, Coca Cola and many others prefer and
indeed insist on mediation being the dispute resolution of choice.

The reason for this goes right to the route of any litigant wanting to limit its exposure to adverse
publicity; cost; loss of management time; adverse publicity; continuing business.

Mediation is:

 Private
 Can offer a selection of specialists (if desired)
 Can provide discovery (if needed)
 Quick
 Non-adversarial
 Preserves relationships

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In the commercial sector companies are looking for:

 Expense reduction
 Breakthrough of posturing by other side, counsel and the recalcitrance of the clients
 Quick resolution
 Relatively inexpensive costs with limited risks

The role for the lawyer is to take and explain these benefits to the client, either as the dispute arises or
in resolving the ADR clause. Just think of some of the benefits that could be brought to your practice
areas by suggesting mediation as a means of ADR:

 Your corporate client will be impressed that you have seized on a process which would appear
to save him costs and preserve a relationship;
 Your local client – the personal injury victim, the divorcing parties, the realtor/vendor dispute –
will be impressed that you are recommending a speedy resolution of the process;
 All will be impressed at the cost savings.

Do All Lawyers Have To Be Mediators?

The answer to this is no, simply because there are some that can mediate and others that would much
rather take the advocate’s role and assist the parties through the process.

There is also the perception that lawyers fear the unknown and will not try to use unfamiliar tools.
However, trained attorneys enhance the mediation "magic". Clients will want competent trained
counsel to assist in resolving disputes.

Mediation has been called "shuttle diplomacy", but that is disingenuous to the efforts of a mediator in
attempting to assist the parties find a solution to their problem.

mediation is a process in which the disputing parties own the eventual settlement. It is not imposed
upon them.

REFERENCES:

1.https://www.lawsociety.bc.ca/page.cfm?cid=1961&t=The-lawyer%27s-role-as-counsel-in-mediation

2.http://www.civiljustice.info/cgi/viewcontent.cgi?article=1020&context=access

3.http://www.mondaq.com/x/13182/Is+There+A+Role+For+Lawyers+In+ADR

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