Christophe Imhoos of Esprit d’entente explores the role of the lawyer in commercial mediation in Switzerland.
"He assists his client throughout the process, usually in a collaborative and constructive manner and may well become the best advocate of the mediation in the interest not only of his client but also in the interest of all other participants."
What is the possible role of the lawyer in a commercial mediation? How should the lawyer interact with his client in the mediation process? Here are some thoughts for using the lawyer as a positive element in mediation involving a commercial dispute.
What is commercial mediation?
According the to the Swiss Rules of Commercial Mediation, commercial mediation is a form of amicable dispute resolution in which the parties ask a mediator, who is a neutral, independent third party, to help them to reach an agreement thus settling their dispute. Unlike an arbitrator or judge, the mediator does not give a decision or judgment. Mediation is based on the free will of the parties, meaning that any party can end the mediation at any time and without providing reasons.
The lawyer should, as far as possible, facilitate transactional solutions and engage in a trial only after he or she has realised that an out-of-court settlement is not possible (for example, such a recommendation is contained in the Code of Ethics of the Geneva Bar Association). In this respect, the use of mediation should be freely and openly discussed between the lawyer and his client, with a view to considering it as a possible and useful method for settling disputes amicably. The lawyer, exercising his professional functions, ensures that the client understands the nature, content and effects of the mediation process and its advantages and disadvantages, compared with judicial or arbitral proceedings. Moreover, as counsel practising in the area of dispute resolution, the lawyer is able to highlight any aspects that these might take. The client must feel free to discuss in the presence of his lawyer not only the state of his business relationships with his business partner but also the personal aspect as well as the future prospects thereof to allow the lawyer to better assess the issues of conflict and to identify options that may arise for an amicable settlement. This implies that the lawyer knows the dynamics and techniques of mediation in order to inform and advise his client effectively.
The lawyer and his client also define at this stage,the place and role of everyone in the mediation – if it takes place – in order to gain full benefit from the process and to achieve efficiency, whilst keeping in mind its objective, namely, the parties’ search for a mutually acceptable and profitable solution to the dispute. In particular, the lawyer should prepare with his client a list of the latter’s present and future needs and interests and how and by whom such a list will be submitted in the mediation process. Before the occurrence of a dispute, the lawyer must also inform his client about the possible use of mediation when drafting a commercial contract, providing for a dispute resolution clause that includes such as settlement method.
The lawyer may be influenced, when considering mediation with his client and depending on the nature of the dispute, to discourage clients from mediation in the following circumstances:
• when the outcome of court litigation or enforcement of a judgment is uncertain;
• when the dispute involves a particularly emotional component;
• when litigation would only be the tip of the iceberg;
• when the dispute hides another one;
• when there is a high probability of the conflict recurring; and
• when there is a disproportion between the costs to be incurred, the litigation’s gravity and interests at stake.
Depending on the relationship between the parties, the lawyer may also recommend mediation to his client:
• when the parties have an interest in pursuing their relationship after litigation;
• when it is in the parties’ interest to re-establish communication for the future;
• when the parties seek appeasement and a lasting solution;
• when the parties’ relationship goes beyond the issues involved in the litigation; and
• when the parties wish to end their relationship without a judicial fight.
The Swiss Rules of Commercial Mediation of the Swiss Chambers of Commerce provides that parties may be assisted by a counsel of their choice. Likewise, the Swiss Chamber of Commercial Mediation Rules provide that, when assisted by counsel, the parties must first inform the other party and the mediator; said rules even recommend that parties hire a “qualified” counsel, without requiring it. In commercial mediation, the lawyer most often plays an active and useful role during the mediation. He assists his client throughout the process, usually in a collaborative and constructive manner and may well become the best advocate of the mediation in the interest not only of his client but also in the interest of all other participants. Without taking the place of his client, he can support and stimulate him or refocus the dialogue, especially on interests and needs, whilst advising him on the limits of the process and ensuring his free and full agreement to the solutions that can be found. The role of the lawyer really makes sense when the mediation is concluded by a written agreement. As an advocate for his client, the attorney verifies that the agreement complies with the wishes of his client who measures its scope and effects, drawing his attention to the legal consequences arising therefrom, for the sake of protection of his rights. Here, the lawyer defends his client, not against mediation but during the mediation so that such process becomes viable and reliable. The lawyer will also ensure that the agreement does not contain any element that would be contrary to the law or that would prevent its ratification by a judge, if necessary or when agreed. In general, the agreement resulting from mediation is drafted by the parties’ lawyers, with or without the assistance of the mediator.
Once the mediation is completed and the agreement reached and signed, the lawyer follows up its implementation and ensures that both its letter and spirit are respected. The lawyer uses the legal proceedings of recognition and enforcement of the agreement reached in the mediation process, when and where available, in case the other party fails to comply or honour its terms after the mediation has ended. The lawyer may also, on behalf of his client, seize the mediator again in case of difficulties in implementing the agreement or when clarifications are needed.