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In John McGruther’s view, there are no minuses to ADR, be it called conciliation, mediation or negotiation, or if it is any hybrid of the three, or any other alternative. As to timing, almost any moment in a dispute is the right one to mediate or raise the prospect, he says.

At a recent Legalwise presentation, business law and mediation specialist McGruther said that litigation removes power and control from disputants. It represents, he believes, a transfer of control to the court, which “decides”, but does not necessarily resolve, the dispute and does not allow for the complex and creative solutions which may be more satisfactory for the parties than an imposed decision. A successful mediation, he says, has many other side benefits, among them confidentiality for disputants.

While, sadly, it is not always a lawyer’s focus, lawyers have an inherent responsibility to introduce clients to the notion of mediation at the outset, he says, to place it on the agenda so that it is always there as a possibility down the track.

Once agreed to, the first thing in a mediation where litigation has already commenced is, he says, to require a brief, no more than a two-page issues statement, instead of copies of pleadings, which lawyers generally want to send. This will force the parties into thinking about the central core of the dispute, as opposed to an “early run” of the litigation, which is what could happen with pleadings.

“As a lawyer, at the moment of first client instructions, always emphasise to the client that he, she or they should be truly fearful of litigation. Identify earlier, not later, the potential course of this conflict if it continues.

“As a lawyer advising clients, whether in a personal, executive or commercial dispute, I have developed a habit, of, after obtaining the usual list of first instructions, and only at the end of that very first conference, deliberately inquiring: ‘Okay, Harry, I have these instructions. And yes, we can issue the statement of claim within the next few days. And when I have your $20,000 retainer cheque and our costs agreement signed and so on, I need to ask you one more question: Harry, what is it you really want?’

“This always obtains a pause, a counter-inquiry, ‘What do you mean?’ It is a response question asked by even the most case-hardened corporate CEO, illustrating immediately that he/ she, despite your assumption of their executive experience, has not even considered this central question, the answer to which is critical ... [It is] the most powerful question you can ask from the outset.”

Often, he says, a barrier preventing resolution is saving face. Lawyers, as well as clients, can become trapped by this. Lawyers should instead be emphasising that litigation, which appears to be the easiest option, and may be the easiest instruction to give, is not brave or sophisticated.

ADR, on the other hand, which offers a journey which could become emotional, is both these things, he believes, and could provide parties with a sense of personal or corporate achievement as a result of being the direct architect of a result which will allow for “relationship preservation” between opponents.

“Treat emotional exchanges court. Conversely, mutual emotion is regularly an ingredient in negotiation or mediation. It is often the very key to resolution. 

“Lawyers are not trained to accept emotion, rather, they are trained to exclude it, to dismiss emotional responses. If a lawyer is to be an effective negotiator, emotional exclusion misses the point.

“Emotional responses, whether emerging as the result of the dispute itself, or because of cultural background, or both, are frequently the imperative ingredient to resolution, and the negotiator’s recognition and acceptance of it more so. For example, some cultural backgrounds, and indeed some high-flying ‘corporates’, do not find sitting in a witness box an easy task ...

“Ignore, in taking the initiative, either as a mediator or an advisor, the misplaced ‘fear of weakness’. The early engaging of ADR, and the initiative taken towards it, is not a sign of weakness, nor should be read as such.

“Indeed, it is to the contrary. The phone should be picked up at the earliest stage on behalf of a client to the other representative, to invite them, including in such terms as: ‘Don’t think this is a sign of weakness. Rather, you will say your case is strong and ours weak. And I’m going to say the same in reverse. Where does that get us? Where does that get your client or mine? ‘”

Encouragement toward the earliest and right moments to mediate, he says, is also good public relations, and will bring in repeat business for a lawyer.