From Adversaries to Architects: The Lawyer's' Guide to Preparing for and Representing in Mediation

Mediate Works (Pty) Ltd
5 days ago
11 min read

Lawyers have the opportunity to architect mediation as part of the formal dispute resolution system

The global civil justice system is undergoing a profound paradigm shift. Driven by systemic court backlogs, excessive legal costs, and the evolving needs of commercial clients, jurisdictions worldwide are transitioning from a strictly adversarial default to an integrated framework of "Appropriate" Dispute Resolution (ADR). "Appropriate" is used in the context of selecting an appropriate process inclusive of court, arbitration, mediation and such processes that are suitable for the type of matter and the parties.

From the United Kingdom’s landmark Churchill v Merthyr Tydfil [2023] EWCA Civ 1416 decision, which affirmed that courts possess the power to compel parties to engage in non-court-based dispute resolution processes (ADR), which includes mediation; Italy's highly successful "opt-out" mandatory mediation model under Legislative Decree 28/2010, Ontario’s Mandatory Mediation Program under Rule 24; to the developments in South Africa with the inception of the Mandatory mediation directives in the Gauteng Province, mediation is no longer a peripheral alternative[2]. To access the list of the global reach of mediation click here.

In South Africa those hoping the mandatory mediation wave will eventually be declared unconstitutional under Section 34 (the right of access to courts), the jurisprudence points in the opposite direction. In the recent Land Claims Court judgment of Marais NO and Another v Daniels and Others ([2025] ZALCC 38; 30 September 2025) [3], the court tackled the constitutionality of mandatory mediation head-on within the context of the Extension of Security of Tenure Act (ESTA). The court confirmed that mediation under the Act is peremptory and, crucially, cannot be satisfied by mere informal "good faith negotiations" or unstructured engagements between the parties. The court unpacked the constitutional tension: while mandatory mediation does limit a litigant's immediate access to court, the judges held that this limitation is reasonable and justifiable in an open and democratic society.

As articulated in our 3rd edition of Appropriate Dispute Resolution: A Practical Guide to Negotiation, Mediation and Arbitration 2025 (LexisNexis), effectively navigating this landscape requires lawyers to undergo a holistic transformation in how they view conflict. To thrive, legal practitioners must master "Mediation Advocacy, a discipline that requires mastering both the art of negotiation (interpersonal skills and emotional intelligence) and the science of negotiation (analytical strategy and systematic planning). Our practice in mandatory mediation matters, has found lawyers to be exceptional in supporting the mediation process and the mediator to the ultimate benefit of their clients.

Lawyers and in-house legal counsel fulfil a crucial role in supporting and architecting the evolution of our legal systems to incorporate the use of mediation. We provide this guide for representatives to use in preparing for their mediation processes and evolving from adversaries to architects of mediation excellence!

Phase 1: The Psychology of Conflict and Advising Your Client

Access to clear thoughts is a calm heart!

Lawyers serve as the primary gatekeepers of dispute resolution. Advising a client to mediate requires strategic foresight and a deep understanding of human conflict dynamics. Lawyers should:

Reframe the Conflict: A critical shift in mindset is required to view conflict as an opportunity for growth, innovation, and the strengthening of relationships, rather than as a threat that must be aggressively eliminated.
Move Beyond Rationality: Lawyers are trained to rely on logic. However, humans are sentient and rarely persuaded by purely rational arguments alone. Lawyers must adopt a multidimensional perspective, addressing the emotional and cognitive drivers of conflict before logical, commercial solutions can be accepted.
Involve All Stakeholders: Sustainable and inclusive solutions require the involvement of all relevant stakeholders, including those directly involved in the conflict as well as broader community or business members.
Overcome the "Sign of Weakness" Myth: Clients frequently fear that proposing mediation signals a weak legal case. True professional advocacy requires educating your client that proposing mediation is a confident, standard commercial strategy that allows them to retain control over the outcome.

Phase 2: The Science of Preparation – The Commercial Mediation Plan

Preparation for mediation differs vastly from trial preparation. While a trial brief focuses on evidence and legal precedent, a mediation plan focuses on commercial leverage, risk analysis, and creative option generation.

Drawing on the systematic frameworks for negotiations, lawyers must equip themselves with a toolkit that goes beyond simple "win/win" notions. As Deepak Malhotra and Max Bazerman outlines in Negotiation Genius: How to Overcome Obstacles and Achieve Brilliant Results at the Bargaining Table and Beyond, effective negotiation involves multidimensional and fluid frameworks for "claiming value", "creating value", and conducting "investigative negotiations".

Every lawyer should complete the template provided below in collaboration with their client before stepping into the mediation room.

The Lawyers Guide for Preparing for Mediation

Dispute Summary & Legal Assessment	Brief Factual Matrix: What happened? Core Legal Issues: e.g., breach of contract, intellectual property infringement, defect. Legal Rights & Remedies: What does the law predetermine your client is entitled to?
Client’s Commercial Profile (Your Side)	Underlying Interests & Needs: What does the client actually want? (e.g., cash flow, preserving a supply chain, protecting public reputation, exiting a partnership amicably). BATNA (Best Alternative to a Negotiated Agreement): If mediation fails, what is your best likely outcome? WATNA (Worst Alternative to a Negotiated Agreement): If mediation fails, what is the worst likely outcome? (e.g., Losing at trial, paying adverse costs, and suffering reputational damage). Reservation Value (Bottom Line): The absolute minimum/maximum your client will accept before walking away. This is determined by the real value they can obtain outside of the negotiation table. Most negotiators will negotiate for a value better than their reservation value.
Opposing Party’s Profile (Investigative Negotiation)	Opponent's Legal Rights: What are their strongest legal arguments or counterclaims? Opponent's Suspected Interests: What are their commercial pressures? (e.g., avoiding insolvency, hiding a defective manufacturing process). Opponent's BATNA & WATNA: What risks are they facing if this goes to trial?
Value Creation & Claiming Strategy	The Zone of Potential Agreement (ZOPA): Where do the reservation values of both parties overlap? Value Creation (Non-Monetary Solutions): What can we offer or demand that costs little but has high value to the other side? (e.g., contract extensions, phased payments, public apologies, confidentiality clauses).

Phase 3: Practical Commercial Dispute Examples

To understand how to apply the Mediation Plan, consider these practical examples that utilise the concepts of creating and claiming value:

Example 1: The Cross-Border Supply Chain Dispute

The Scenario: A retailer buys 5,000 tyres from a foreign manufacturer. Shortly after the sale, customers complain of rapid tread wear. The retailer suffers a massive financial loss and wants to recoup it but relies on the manufacturer for highly competitive pricing. The manufacturer privately acknowledges the defect but lacks the liquid cash to pay a massive upfront damages claim.
The Rights-Based Problem: Suing for breach of contract in a foreign jurisdiction will be prohibitively expensive and permanently destroy the supplier relationship.
The Mediated Solution (Creating Value): Instead of demanding a crippling cash refund that risks bankrupting the supplier, the lawyer proposes a value-creating solution. The manufacturer agrees to replace the unused tyres and provides a 50% discount on the next three orders, coupled with extended payment terms. The retailer recoups the losses over time, the manufacturer avoids insolvency, and a lucrative commercial relationship is preserved.

Example 2: The Co-Founder Deadlock

The Scenario: Two equal shareholders own a business. The older founder wants to maximize immediate profits to fund his retirement by pivoting to high-end, luxury goods. The younger founder fears the risk of luxury inventory in a slow economy and wants long-term sustainability. Their deadlock is paralysing the business.
The Rights-Based Problem: Litigating a shareholder dispute or forcing a dissolution would drain the company's capital and likely result in a liquidator selling the assets at a fraction of their value.
The Mediated Solution (Investigative Negotiation): The mediator helps the lawyers identify the underlying needs. They agree to a phased buyout. The younger founder purchases the shares at an agreed valuation, structured over five years and funded by business profits. The older founder steps back from daily operations but remains as a salaried consultant for two years to transfer his client network

Negotiation in a mediation is as much an art as it is a science. It is an opportunity to create something new and wonderful

Phase 4: The Art of Representation in Mediation

During the mediation session, the mediator controls the process, but the lawyers and parties control the outcome. Negotiation is a skill that requires continuous improvement.

The Opening Session: Separate the People from the Problem: Do not treat the opening session like a trial summation. Aggressive, adversarial rhetoric will immediately cause the opposing party to become defensive. Speak directly to the opposing business leaders, acknowledging their frustrations while firmly stating your client's commercial objectives.
Leveraging Private Caucuses: Mediators will frequently separate the parties into confidential rooms. Use this space strategically to conduct a realistic risk analysis based on your BATNA. Assist the mediator by selectively sharing confidential information that explains why your client requires a specific term, empowering the mediator to broker a deal without revealing sensitive underlying reasons to the opponent.
Inventing Options for Mutual Gain: Unlike a judge, who is restricted to granting specific legal relief, lawyers act as architects of value creation. Brainstorm creative solutions that address the core concerns of all involved.

Phase 5: The Statutory Horizon and Global Enforcement

This reality is not being wished away; it is being codified globally. The firms and businesses that lean into this paradigm shift will save millions in costs, protect their commercial relationships, and secure faster, more sustainable justice.

If you wish to learn more, we highly recommend that you buy our book from Lexis Nexis or reach out to Mediate Works to learn how we can help you.

REACH OUT

References

Books and Book Chapters:

Patelia and Chicktay: Appropriate Dispute Resolution: A Practical Guide to Negotiation, Mediation and Arbitration, 3rd edition. Published by LexisNexis.
Chapter 1: Conflict: A Foundation for Appropriate Dispute Resolution. (Focuses on reframing conflict as an opportunity for growth and the multidimensional approach to conflict management).
Chapter 2: The Art and Science of Negotiations. (Focuses on the three thematic pillars of negotiation and Malhotra’s toolkit for claiming value, creating value, and investigative negotiations).
Chapter 3: Mediation: An Effective Process for Creating Value. (Focuses on the mechanics of value creation in the mediation setting).
Fisher, R., Ury, W., & Patton, B. (2011). Getting to Yes: Negotiating Agreement Without Giving In. Penguin Books.
Malhotra, D. & Bazerman, M. (2007). Negotiation Genius: How to Overcome Obstacles and Achieve Brilliant Results at the Bargaining Table and Beyond. Bantam Books. Published by Bantam Books
International Statutes, Rules, and Conventions:
Canada: Ontario Mandatory Mediation Program, Rules of Civil Procedure, RRO 1990, Reg 194, Rule 24.1.
Italy: Legislative Decree No. 28/2010 (Implementing the EU Mediation Directive and establishing the Italian "opt-out" mandatory mediation model).
South Africa: Uniform Rules of Court, Rule 41A (Voluntary Consideration of Mediation) and the Gauteng Division Directive Introducing Mandatory Mediation (22 April 2025).
United Nations: United Nations Convention on International Settlement Agreements Resulting from Mediation (The Singapore Convention, 2018).
Key Case Law:
Churchill v Merthyr Tydfil County Borough Council EWCA Civ 1416 (United Kingdom Court of Appeal affirming the court's power to stay proceedings to compel parties to engage in ADR).
Halsey v Milton Keynes General NHS Trust EWCA Civ 576 (United Kingdom precedent on cost sanctions for unreasonable refusal to mediate).
Marais NO and Another v Daniels and Others ZALCC 38 (South African Land Claims Court confirming the constitutionality of mandatory mediation under ESTA).
Brondani v Brondani (2021/52977) ZAGPJHC 1157 (South African High Court defining the strict threshold for "exceptional circumstances" to bypass mandatory mediation).
Reports & Empirical Studies:
Centre for Effective Dispute Resolution (CEDR) (2025). The Eleventh CEDR Mediation Audit, London, UK. (Confirming an 87% aggregate settlement rate in commercial mediations).
Hann, R.G., Baar, C., et al. (2001). Evaluation of the Ontario Mediation Program (Rule 24.1) Final Report: The First 23 Months. Osgoode Hall Law School.

Global Context of Mediation Law

GLOBAL CONTEXT OF LEGAL INCORPORATION OF MEDIATION

Country / Jurisdiction	Primary Legal Instrument / Statute	Core Legal Operational Norm	Final Enforcement & Legal Status
Italy	Legislative Decree No. 28/2010	Mandatory Gatekeeper Prerequisite: Blocks court entry for massive socioeconomic sectors (real estate, banking, insurance, inheritance) until a formal mediation attempt is certified.	Converts into an Enforceable Judicial Title directly executable upon signature approval.
Turkey	Law No. 6325 on Mediation in Civil Disputes	Compulsory Pre-Litigation Mandate: An absolute legal requirement before filing commercial debt collections, consumer complaints, or labour disputes.	Carries the exact weight of a Binding Court Decree without requiring a baseline merits trial.
India	The Mediation Act, 2023	Statutory Pre-Litigation Pre-requisite: Unifies community, court, and online avenues under a strict, unextendible 180-day legislative window.	Legally executable on par with a Final Civil Court Judgment.
Greece	Law No. 4640/2019	Mandatory Preliminary Session: Forcing mandatory sessions for civil, family, and specific commercial disputes exceeding designated monetary caps.	Registered and enforced as an Executive Title in local civil court registries.
Argentina	Law No. 24.573	Universal Pre-Trial Mandate: One of the world's oldest frameworks, blocking almost all civil and commercial trials until a registered mediator intervenes.	Approved by a supervising judge and enforced as an Enforceable Court Order.
Bangladesh	Code of Civil Procedure (CPC) Amendments	Court-Annexed Screening: Mandates court-referred mediation for selected family, land, and economic disputes to clear historic backlogs.	Operates directly as a Binding Consent Decree of the civil court system.
Nigeria	Lagos State Multi-Door Courthouse (LMDC) Law	Multi-Door Courthouse Routing: Public courts screen complaints at filing and route appropriate cases to dedicated out-of-court mediation chambers.	Endorsed by an ADR Judge to instantly become a Binding Consent Judgment of the High Court.
United States	Alternative Dispute Resolution Act of 1998 / State Acts	Early Neutral Evaluation: Federal and state circuit courts require mediation or early neutral assessment in civil, domestic, and bankruptcy actions before allowing jury scheduling.	Stamped by the court clerk to serve as a Binding, Enforceable Order.
China	People's Mediation Law	Grassroots Multi-Tiered Conciliation: Blends historical community reconciliation with formal civil procedure via specialized neighbourhood and court-linked committees.	Retains binding contractual status; can be rubber-stamped via a fast-track process for Direct Judicial Execution.
Japan	Civil Conciliation Act (1951)	The *Chōtei* System: Employs a court-mandated institutionalized panel comprising a sitting judge and two expert citizen conciliation specialists.	Conciliation records are entered into the registry with the exact weight of a Final Litigation Verdict.
United Kingdom	Civil Procedure Rules (CPR) / Churchill v Merthyr Tydfil	Judicial Discretionary Sanctions: While technically voluntary, judges can stay trials and compel mediation. Unreasonable refusal triggers severe financial cost penalties, even for the winning party.	Governed as a binding Settlement Contract backed by discretionary court cost orders.
Australia	Civil Dispute Resolution Act 2011	Mandatory Genuine Steps Filing: Parties and lawyers must file a certified statement detailing the precise negotiation/mediation steps attempted before a lawsuit is accepted.	Non-compliance triggers Personal Financial Cost Sanctions for both lawyers and clients.
South Africa	Uniform Rule 41A of the High Court Rules / Gauteng Protocol	Mandatory (Gauteng only) Declaration of Intent & Absolute Confidentiality: Litigants must formally declare their agreement or objection to mediate prior to filing pleadings. All negotiation data is fiercely protected under strict "without prejudice" shields.	Enforced as a protected contractual agreement; groundless refusal heavily skews the judge’s Final Legal Fee Allocation.
Ghana	Alternative Dispute Resolution Act, 2010 (Act 798)	Judicial Referral Powers: Formally empowers sitting judges to pause public court litigation at any trial milestone to refer disputants to private mediation practitioners.	Registered with the high court to serve as an Enforceable Civil Judgment.
Saudi Arabia	Commercial Courts Law / Judicial Costs Law	Cost-Driven Corporate Incentives: Certain commercial circuits mandate conciliation. This is paired with high filing fees (up to 5% of the claim value) to aggressively discourage courtroom litigation.	Mediated settlements through the SCCA are registered and transformed into immediate Executive Deeds.
United Arab Emirates	Federal Decree-Law No. 40 of 2023 on Mediation	Pre-Litigation Conciliation Anchoring: Private or court-linked mediation agreements are officially vetted by a supervising judge to skip the trial process entirely.	Instantly transforms into an Enforceable Executive Deed for direct asset execution if a party defaults.
Singapore	Singapore Mediation Act 2017 / The Singapore Convention	Cross-Border Treaty Harmonization: Serves as the premier global node where cross-border international commercial settlements bypass local contract lawsuits.	Entitled to Direct International Asset Execution via rapid registration with the High Court of Singapore.
Colombia	National Conciliation Law / Singapore Convention	Mandatory Pre-Litigation Attempt: Requires conciliation as a procedural requirement in civil, family, and commercial matters before a claimant can formally sue.	Executable directly as an Executive Title and carries the authority of res judicata (final court ruling).
Brazil	Federal Mediation Law (Law No. 13.140/2015) / CPC	Mandatory Judicial Hearing: The Civil Procedure Code requires judges to schedule a mandatory preliminary mediation/conciliation hearing after a lawsuit is served.	Signed agreements are validated by a judge and turned into an Extrajudicial or Judicial Enforcement Title.
Ecuador	Arbitration and Mediation Law (LAM)	Judicial and Extrajudicial Integration: Authorises mediation at any stage of litigation, backed by a nationwide network of approved mediation centres.	Written settlement minutes have the legal binding effect of a Final Court Judgment in a Court of Last Instance.
Canada	Ontario Rule 24.1 / Provincial Civil Codes	Mandatory Early Mediation: Select provinces (like Ontario) mandate early, automatic mediation for civil non-family cases within tight filing windows.	Filed directly with the court registrar and enforced exactly as an Order of the Superior Court.
Bulgaria	Civil Procedure Code (CPC) Amendments	Judicial Mandatory Directives: Allows courts to formally order mandatory mediation for specific corporate governance, property, and divorce actions.	Approved by court order and holds the same operational legal strength as a Court Settlement.