By College of Law.
Dispute resolution is a popular choice for law firms to expand their areas of practice and provide clients with more options to amicably settle their matters. However, it can be tough to know where to start, particularly if you have never formally practised or studied dispute resolution. We spoke to commercial mediator Cecily Zhu, managing director of the Accord Group, about how lawyers can effectively skill up in dispute resolution.
Develop your creative problem solving
Cecily is a nationally accredited mediator, Fair Work Commission conciliator and admitted lawyer – and she is keenly aware of how different dispute resolution can be from traditional lawyering.
“I think dispute resolution differs to other areas of law because of the human dynamic of disagreement – that is, two or more people have different perspectives on a situation, they cannot see eye to eye or understand the other point of view,” said Cecily.
“Putting people’s differences to one side, the focus of dispute resolution is problem solving – finding a path forward for parties in dispute,” explained Cecily. “This means that lawyers need to be strategic in advising clients about the best process to resolve a dispute as well as flexing their creativity muscle to craft potential solutions. It is important for lawyers to have an intimate understanding of their clients’ needs and goals so they can appropriately weigh up the potential benefits and risks of different processes, and options for resolution.
“People naturally have different conflict and negotiation styles which can greatly influence a party’s dispute resolution strategy and the course of a dispute, so there is often an element of surprise or the unexpected!”
Understand the client’s needs and goals
This involves going beyond a client’s legal needs or goals. Much of Cecily’s success as a commercial mediator comes from delving deeper into what clients really want – and what they are willing to give to reach agreement.
As well as facilitating complex multi-party consultations for large corporations and professional associations, Cecily has managed industry dispute resolution schemes in the Australian franchising and horticulture industries, and actively manages dispute resolution schemes in the film exhibition and wine grape industries.
“These schemes are aimed at helping industry participants resolve disputes quickly and cheaply for the benefit of the whole industry,” explained Cecily. Her work sees her mediating everything from partnership disputes and retail leases to unfair dismissal applications.
Her first step is to understand the client’s underlying needs.
“It is important for lawyers to first understand their client’s needs and greater goals to inform their dispute resolution strategy,” said Cecily. “This includes not only a client’s legal entitlements, but also their personal goals, business objectives, budget, relationships, and other considerations which may be relevant. This involves asking the right questions of the client to get the right information most efficiently. The resolution to a dispute settled outside of court will often be reached if the parties’ underlying needs can be met.”
Communicate to minimise miscommunication
Expanding into dispute resolution requires lawyers to understand the various dispute resolution processes available – from negotiation, to mediation, arbitration, or litigation.
“Lawyers need an in-depth knowledge of these processes, as a lawyer’s approach will vary according to the process,” said Cecily. “All processes will invariably involve communication which is probably the most important skill a lawyer should acquire. This involves communication with your own client, the other side and their representative. Disputes often arise from miscommunication of some kind and parties’ emotions getting involved, so professional and clear expression is important to avoid escalation of a matter.”
Attract new business with quick, flexible dispute resolution
For most clients, a legal dispute can be a difficult and stressful experience.
“Lawyers play an important role in providing assurance, guidance and closure for clients in dispute,” said Cecily. “By presenting dispute resolution options outside of court, lawyers can attract new business for clients that want to resolve their disputes quickly, with flexibility and in a way that meets their needs.
“Lawyers should be aware of the different kinds of client satisfaction – procedural (relating to the process), emotional (personal needs) and substantial (the actual outcome or solution). By offering flexible and effective dispute resolution to clients, lawyers are able to achieve greater client satisfaction and grow their practice accordingly. Often clients won’t remember what you say or do, but they’ll always remember how you make them feel.”
Consider formal training
With many mediations now taking place online, it makes sense for the training to be done remotely as well.
The College of Law provides extensive online mediation training for lawyers looking to add dispute resolution to their practice, including formal mediator training.