Fortunately, there are lawyers who have never embraced the tournament model and instead focus on results and interests rather than battles and positions. For decades I have been engaged in resolving sensitive and complex issues, usually without entering a courtroom. By using quickly developing techniques of Appropriate Dispute Resolution (ADR). In their recent book 'Het Papieren Paleis', Maurits Barendrecht and Maurits Chabot call for making the law more humane and enabling, and turning the legal professions from a Paper Palace into a Peace Palace. So that is what we are working hard on, every day! We prefer negotiation and conciliation, and compare it with the developing techniques of mediation.
Negotiation - search for common ground by using different perspectives
Although I have been a lawyer for 30 years, I litigate only occassionally. Simply because my client's interests are usually not served by litigation: it is expensive, unpredictable, incredibly slow, and on balance usually solves very little. Accordingly, Rule 5 of the Dutch Rules of Conduct for Lawyers states that a lawyer should always keep in mind that an amicable settlement is often preferable to a lawsuit. An 'amicable settlement', that is what attorneys at law should usually do. And I admit, this offers room for differences: I am completely on the negotiating side of the spectrum where most 'litigation lawyers' are focused on the game in court.
The few times that I do decide to litigate, it is either a very fundamental (mostly legal) question, which has not yet been settled in the doctrine; in that case I try to go to the Supreme Court in one line and provoke new jurisprudence. This happens with some regularity in tax cases, because tax law has many gaps and ambiguities. It can also happen that a case is so locked up that it is necessary to pry it loose with (the start of) proceedings; in that case, however, it is important not to lose sight of the ultimate goal of the exercise, which is to achieve a real solution to the parties' issues; it is not necessarily a question of completing those proceedings to the end, but of processing the case in such a way that there is room to solve it. In fact, this is still seen as a negotiation.
In civil law cases, where sensitive personal relationships such as family relationships play a role, it is in my opinion best practice to engagea separate attorney at law, who plays the procedural card so that I myself stay focused on the possibility of solving the underlying issues by means of a guided negotiation. That is the method which is standard practice in English practice: the barrister litigates exclusively and does not have to deal with the client, the relationship with the opposing party and the real problems which often play in the undercurrent between them; that is the exclusive domain of the solicitor, who keeps an eye on the ball of the big picture.
Though nobody can go back and make a new beginning.. Anyone can start over and make a new ending - Chico Xavier
I was trained at Harvard University in complex negotiation techniques that are all based on the underlying interests of parties and thinking in multiple perspectives. Recognizing and leveraging on emotional patterns has proven to be an essential skill to learn. My assignments often revolve around preventing issues or conflicts, future proofing practices, or achieving a solution in a guided negotiation, after taking stock of the issues and coming up with specific suggestions to preferably solve everything at once. In doing so, I like to work with others as much as possible, not in the least with the client himself, but also with the other parties and consultants or lawyers involved. The basic attitude is therefore always based on openness and cooperation, because - if addressed in the right way - you achieve much faster and better results. These relationships are always different and unique, which means that the ideal working setting for each case is the first creative step towards the solution.
By the way, it's not a soft state, that open collaboration, but just hard work. In fact, it is an exercise in seeking space, for solving the issues there is usually a common ground to find where the interests overlap. In international practice this method is referred to as 'collaborative practice' or 'integrative practice', however, this terminology is not on spot.
In the corona year 2020, where all my speaking engagements were wiped out of my agenda at once, I decided to immerse myself in mediation and completed my training as a Legal Mediator at the Schonewille & Schonewille Academy for Legal Mediation in Rotterdam. It struck me in the first place that mediators have the idea that lawyers are only capable of adversarial thinking, therefore in opposites, and therefore mainly want to litigate or negotiate bullishly. On the contrary, I had hoped that I would only meet people in mediators who would not indulge in rough simplifications and who would instead allow the multitude of arguments and sentiments to permeate themselves. But obviously nothing human is foreign to this professional group either. Although multiple partisan thinking is cultivated in Legal Mediation, the idea that (at least part of the) lawyers may have a natural command of it turned out to be relatively unwelcome.
At Harvard I learned that negotiation and mediation are very close to each other and in fact differ in form, but much less in the effective way of working. The American styles of mediation are therefore very active, directive on the process, evaluative on the content, and often confrontational. I could imagine much more than the lousy, 'hands on the back' thing in the Netherlands, what we called mediation here for a long time.
The training of Dr. Fred Schonewille and Mr. Manon Schonewille distinguishes from the standard Dutch practice and has a much more open view on the topic, which I endorse for the following five reasons:
- It is now recognized that it is relevant that legal expertise is also essential at the negotiation/mediation table; in the past it was debated that anyone could be a mediator, even in complex legal conflicts, because parties have to do it themselves and only need a process facilitator. This does not lead to sustainable solutions.
- It has also become clear that there are many styles of mediation, of which the traditional Dutch method (the facilitating method, which I refer to as 'the hands on back method') is by no means the most useful or brilliant, especially in complex conflicts. More confrontational styles, or even the possibility of a mediator's proposal, an initiative to solve the conflict, are also being practiced.
- It is also recognized that mediation is not a 'benefit it doesn't, doesn't harm it' tool. I know of several situations in which mediation has polarized the case further, e.g. because the process is manipulated by a party. Unfortunately, this occurs much more often than is generally acknowledged.
- I was really happy with the view that the best mediator has a secret stock of perspectives and, depending on the situation, can apply other styles, summarized as the 'ecclectic method'. In my opinion this is exactly the art of negotiation.
- It is also recognized that in larger, complex cases, mediation advocates are partisan advocates who advise and assist their clients in the mediation process. These mediation lawyers work separately from the mediator (i.e. three professionals).
The question arises: what exactly is the difference between mediation and an elaborate interest-based negotiation (as taught at Harvard)? Following the points addressed, the differences seem to be becoming increasingly minimal.
The core difference, of course, is the form and methodology of the process. The mediator is independent, and maintains a considerable distance from the parties, acting according to a certain methodology. Whatever you form, you get; it attracts people, who find a grip on the methodology but will not deviate much from it either. There are also two form agreements in mediation, which in my opinion are very valuable. In the first place this is the voluntary non-commitment: at the beginning of the process it is agreed that parties will only be bound once they have signed an agreement. In other words: the 'good faith' which is always valid during negotiations and which one has to practice towards each other, is discarded during the process! That means that one can always, even when you are almost there, withdraw and still choose another way without any legal consequences. I summarize this with the 'Free Space'. Moreover, this is concluded with the second form clause: Secrecy of everything that happens during the mediation.
I therefore take these two process agreements with me into my practice of interest based negotiation, with which I arrive at what I consider to be the most adequate form of conflict resolution and prevention: conciliation, from the different interests of parties. That is a concept which is not really known in the Netherlands, wrongly so.
Conciliation assumes an active approach, a conciliator who is responsible for finding the 'common ground', the space where a solution to the problem can be found. It is therefore much less remote than mediation. Where the mediator always remains at a distance and impartial, the conciliator does not have to be. The methodology starts from the detailed negotiation, in which there are far fewer form requirements than in mediation. As in a negotiation, there can be two conciliators who together test the possibilities of solutions and interventions to come to those solutions; they shape a process. Of course this need not be the case, it is also possible - in case of major conflicts - that both parties appoint a conciliator who then assumes multiple partisanship. However, also in the case of two conciliators, they are multiple partisans; after all, in that case too, it is a matter of reaching a solution that does justice to everyone's interests. The difference between partisan and cooperative or multiple partisan is therefore perhaps smaller in practice than thought.
The process agreements Secrecy and Free Space can also be used and are of great practical value. It is about creating as much safe space as possible to deviate from beaten track, go back in time and break new ground. The active role of the conciliator also means that it does not allow the process to be manipulated for a purpose other than that for which it is intended. Precisely this active role implies that the conciliator is also a gatekeeper of the integrity of the process. That's what mediation is too often lacking for my taste.
Of course, the starting points are the same as in a negotiation, in which the existing role of representation by lawyers (the role of client-lawyer requires constant coordination and confirmation) continues to apply.
The fact that conciliation is in fact an elaborate form of interest-based negotiation, and is also actively monitored, makes it a less soft sheen. Also, the characteristics of a conciliator are such that it will be a position for very experienced negotiators.
Finally, conciliation is ideally suited to guide major transitions and thus prevent conflicts in the future. Think of business successions in family businesses, forms of collaboration between professionals. Precisely where conflicts are dormant but not yet on the surface, a conciliator who can (and dares to) confront them would be invaluable.
Although my introduction to mediation has not converted me to another way of working, it has sharpened my way of working. I also see myself in the future acting as a mediation advocate in larger conflicts, that are handled in mediation. In all cases, I will focus on my ability to conjure up a secret supply of perspectives in each case.
@mr.dr. Ineke A. Koele, december 2020