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Preparing properly for mediation
Among the numerous important rules for engaging in mediation, Max Kimber SC says, is ensuring that one has taken the process seriously and has made adequate preparations.
Jerome Doraisamy
Speaking recently on The Lawyers Weekly Show, Max Kimber SC — a Sydney-based barrister who has practised for decades — stressed that all lawyers involved in mediation must appreciate just how different such processes are from litigation.
The core point he tries to make, when emphasising the importance of preparation, is that “as a barrister — and, so too, as a solicitor — [mediation] is not like going to court. Don’t wear your wig and gown for mediation”.
Such attire, he argued, “won’t help”. Mediation, Mr Kimber explained, is “not designed to be adversarial, and it is not advocacy in the courtroom sense”.
“This is because you don’t have a judge who has any power to make a decision, and you’re not trying to convince anybody, a third party of the rights or wrongs of your case,” he said.
The preparation you should do instead, he detailed, should be designed to help one’s client have a civil, professional and constructive discussion with the people with whom they’re in dispute, Mr Kimber said.
“Mediation is designed to empower the litigants themselves to step up. In American language, you’d talk about taking the first chair. And that’s what’s encouraged. So, the preparation aspect is to make sure that the clients don’t turn up at a mediation completely unaware of what’s going to happen, let alone nervous about it,” he said.
This necessarily involves, he said, asking, “What’s your first position? What’s your second position? What are you trying to achieve? What’s an acceptable outcome?”
“The more you do in advance, the more the process will work well for the parties,” he said.
When asked if determining appropriate dress code is something that barristers and lawyers should decide upon before mediation, Mr Kimber said that there is “no dress code as such”, but ceded that “there’s something” in the idea of not dressing in a manner that could come off as adversarial and standoffish, rather than appearing conciliatory.
This may be important, he noted, in the same way that more and more judges are not wearing wigs, as a way of demystifying the court process.
“If you, as a mediator, are trying to emphasise that this is how parties have a discussion, then it may well be of assistance to the clients at least to see their lawyers turning up dressed a bit more casually,” Mr Kimber said.
On the question of whether counsel should attend mediations, particularly if it might have the effect of appearing litigious or adversarial, Mr Kimber said that it would ultimately depend on the nature of the matter at hand.
“What you don’t want is barristers turning up in their wigs and gowns or with a shield and a sword who are expecting to go into battle like they would if they were going into court,” he said.
This said, Mr Kimber noted, “the adversarialism amongst counsel who attend mediation has dropped enormously with education”.
“I’ve seen a dramatic change in the last 20 years. Most people get it. I don’t run into problems with barristers at mediations anymore in terms of gladiatorial adversarialism, which is singly unhelpful.
“Sometimes, it’s very helpful to the mediator to have separate conversations with the counsel who, by definition, are usually a bit more dispassionate than the solicitor who is, by definition, closer to the client,” Mr Kimber continued.
“I find this sidebar, or discussions with counsel, often very helpful. By and large, I find that it helps me to have counsel at mediation, but again, it’s a matter for the parties and the issue of cost. But if a barrister has been briefed to advise on matters associated with the litigation, then, by and large, I think it’s helpful to have them at the mediation.”
Jerome Doraisamy
Jerome Doraisamy is the editor of Lawyers Weekly. A former lawyer, he has worked at Momentum Media as a journalist on Lawyers Weekly since February 2018, and has served as editor since March 2022. He is also the host of all five shows under The Lawyers Weekly Podcast Network, and has overseen the brand's audio medium growth from 4,000 downloads per month to over 60,000 downloads per month, making The Lawyers Weekly Show the most popular industry-specific podcast in Australia. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of Minds Count.
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