Lawyers as mediators – Obstacles and challenges
By opening the Chapter 23, Serbia has initiated the process of harmonizing the standards of the judiciary with the countries of the European Union. One of the standards concerns the more efficient operation of courts. More active use of mediation is thought to reduce the number of litigations. According to data from the Registry of Mediators of the Ministry of Justice of the Republic of Serbia, 80% of them are lawyers.
The Law on Mediation in Dispute Resolution as well as by-laws defines the conditions for obtaining the status of mediators and trainers in the field of mediation. These are five-day trainings with basic knowledge in mediation as well as specialist trainings lasting two days each.
Clearly, mediation is more efficient, effective and cost-effective than litigation. That is why the goal of the Ministry of Justice is to intensify the application of the mediation process as an alternative to dispute resolution. Let us return to lawyers as the most interesting target group that would participate in improving the work of the judiciary through greater mediation.
The question is can a lawyer be a successful mediator?
We present the basic differences in the practice of law in the court and in the mediation process. A lawyer is an authorized person that represents and defends the interests of one of the parties to the dispute. The fact that a court case exists means that the parties who caused the conflict do not have a solution and seek their interests in the court by referring to the laws as mechanisms that will lead to justice.
Knowing that litigation is complex and time-consuming, they seek legal counsel. Each party to the dispute may have one or even a team of attorneys preparing and pursuing a lawsuit or defense. Looking at the litigation from the perspective of the conflict management, we come to the conclusion that it is a high-level conflict. The parties involved in the conflict are unable to find a solution on their own and seeking a way out from an unenviable situation in a court case.
The litigation is actually the culmination of a conflict in which the intervention of the court as well as of the lawyers is necessary. One lawyer represents interest of one party in the conflict. Thus, the lawyer is a party to the conflict and exclusively represents one party’s interests. The next question that arises is how attorneys, who by the nature of their professional calling are in a situation of participating in a conflict, are biased, defending one side, as a mediator who is diametrically opposed to a lawyer from both a professional and psychological point of view.
Therefore, the mediator does not participate in the conflict as a mediator, but looks at it impartially, extremely objectively in order to find a peaceful solution for all actors of the conflict. We will agree that transformation in terms of observation and attitude towards conflict is practically a new skill that lawyers in Serbia must have in order to be successful mediators. The challenge for mediation trainers is to make successful mediators from lawyers by pointing out the differences in the ways and the different roles mediators have with attorneys in order for future mediation processes to be successful.
It is interesting that at the first hearing the Law on Civil Procedure of the Republic of Serbia recommends a peaceful settlement of the conflict. The difference in the way the court recommends conflict resolution in relation to the mediation process is that the lawyers are still in the role of the lawyer rather than the mediator and that they represent the interests of one party. The introduction of mediation as an obligation in the conduct of litigation, which is an assumption that the new mediation law will provide, that before the disputes begin parties are referred to mediation proceedings where the role of the lawyer will be substantially different.
Lawyers reject the changes in work and the obligation to carry out mediation, which a larger percentage of Serbian lawyers do not know and do not want to apply, considering it an unnecessary waste of time and money. Fortunately, lawyers’ resistance has diminished over time as they see the benefits of mediation that will contribute not only to the more efficient work of the courts but also to the lawyer.
The advantage of a lawyer in mediation is that he / she has knowledge of legal regulations, which can contribute to solving the problem by using specific knowledge in the basic field of work. The only challenge is how the conflict is perceived to emerge from the construct of active involvement in the conflict and the creation of a psychological frame of reference that views the conflict from a neutral and impartial position as well as a counterparty position that is equal.