Issue 01 | Article 04

From 'being right' to 'doing right'

The case for mediation

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Published 01/12/2020

Published 01/12/2020

It’s long been your role as a lawyer to prove yourself and your clients right. But amid a global pandemic and a slow turn towards a more conscientious society, doing the right thing seems to be at the forefront of many people’s minds. Could mediation be the way forward? 

A cultural, social shift is at play. Here’s how to ride it.


The rise of tolerance and goodwill

It might seem wild to claim that society is becoming more tolerant while global unrest continues to stream across our airwaves. 

You may think it’s even more ridiculous to say that people are feeling more connected to one another – given that we’ve spent the best part of 2020 in various forms of lockdown. 

But Emma Ryan of Lawyers Weekly suggests we take a look at the evidence.

"Look at how we are managing aggression and sexism. Whether it’s on the footy oval or in the workplace, aggression is just not acceptable anymore.

"Even as recently as 10 years ago, who would have thought conservative Australia would have voted in favour of equal gay rights? We have never been more conscious of our mental health as a society. Bullies are being bullied into submission at schools and workplaces. There are ‘hubs’ in every city in Australia where competing businesses collaborate for the good of the industry."

From the crackdown on bullying and the increased focus on mental health, to adopting facemasks and other cautionary measures to protect our most vulnerable. Society is prioritising the wellbeing of each other now more than ever. So, what does this mean for you?


Minimal harm

Ronald J. Levine, a New Jersey litigator, believes that minimising harm is the best way forward, due to the “tremendous personal and economic stress” caused by COVID-19 across the world.

He suggests that clients are feeling even more overwhelmed than usual. The compounding stress of the pandemic and a lawsuit will be simply too much for many people. 

“In the aftermath of the pandemic, lawyers must do everything possible to reduce the human and economic stresses on the litigants and the court system that result from full-blown litigations,” Levine explains.

To avoid the emotional, economic and physical toll that comes with a lengthy court fight, mediation can act as an early, voluntary and amicable solution.


Riding the wave 

If you look at Kübler-Ross’ ‘5 Stages of Grief’, you’ll notice that they closely resemble the journey clients pass through during litigation – denial, anger, bargaining, depression and acceptance.

Unfortunately, we often get stuck on those early stages – denial and anger. 

But what if we were to evaluate that final stage at the very beginning of our litigation process? 

Adopting early case assessment, Levine suggests, could break the tired and dissatisfying ‘pleading-discovery-trial preparation-settlement’ model.

He argues that early case assessment and mediation provide a win-win mechanism, and that by making mediation the norm, we can significantly reduce harm to the client and the strain on the court system. 

Ryan agrees with this sentiment. She reiterates that while animosity is the general vibe of court hearings, resolution and empathy is often the focus of mediation.  

In a world already licking the wounds that 2020 has inflicted upon us all, harm reduction should be at the forefront of our legal approach. While ‘fighting the good fight’ may be tempting, it’s time to shift focus from being right, to doing the right thing.




The evolution and rise in online dispute resolution (Centre for Legal Innovation)