This post is written by Kerri Salata, a lawyer, ethics, and compliance professional who advises companies on how to meet their legal and regulatory requirements using creative, design-driven strategies. She is the Founder of Kerri A. Salata, Legal Professional Corporation, and also holds the position of CEO at Comply With Me, a Compliance Consultancy Firm known for its innovative approach to regulator-accredited compliance education.
Whenever people begin exploring innovation in the law, they inevitably begin with a perfunctory quote from futurist, Richard Susskind. So this is how we begin: “[m]any court lawyers will say that the name of the dispute game is gladiatorial combat, and any thoughts of greater cooperation amongst warring parties are naïve and misplaced. At the risk of getting sued, I generally regard this as rhetorical posturing on the part of senior lawyers that is more often self-service than client facing.”[1] Susskind said it, I did not. But it is true that the engagement of lawyers can often create a bigger divide between parties, and this is where the mediator finds the parties – in the middle of a dispute that followed the traditional legal process. By the time parties seek mediation, costs are increasing, and all parties are suffering expending emotional energy to get to the mediation. Susskind proposes that to challenge the status quo, we ought to consider new efficiencies and technologies that avoid and improve the ‘traditional legal apparatus.’ Mediators play an essential role in allowing parties to come together to settle disputes hatched in the traditional legal process, but mediators can fall into the trap of maintaining the status quo. In mediation, there is significant opportunity to design a service that provides value to all parties and creates efficiency in the mediation process.
Service design is about implementing a user-friendly service that meets the user’s needs efficiently and effectively. Consider getting a coffee from Starbucks. You are greeted by a friendly barista who allows you to custom-order anything from the menu. It is ready quickly and as you like it, with your name written on the side of the cup with a little smiley face. This type of design can be used in the legal context to improve mediation services. Service design means, “…we need to think in terms of designing for relationships and experiences that evolve and change over time, rather than just in terms of short moments of consumption or usage.”[2] The mediator is a service provider. Here are three ways a mediator could consider improving their service delivery.
“A good service clearly explains its purpose. The purpose of the service must be clear to users at the start of using the service. That means a user with no prior knowledge must understand what the service will do for them and how it will work.”[3]
Have you been using the same opening statement for a decade or can it use an upgrade? When considering an opening statement, mediators should ensure they’re clearly explaining the process. For most participants in a mediation (aside from lawyers), this process will be completely alien. Parties may have a general sense of the purpose as explained by their counsel, but mediators can have a perfect opportunity to set “a constructive tone” and establish a cohesive, collaborative environment[4] to foster the best chance for settlement. People with little to no understanding of the mediation process should be able to understand what it is and how it works.
The use of pithy visual presentations in the mediator’s opening statement can improve understanding and retention by the listener. This is an opportunity to create a visual roadmap of what the parties can expect during the process.
“A good service enables a user to complete the outcome they set out to do.”[5]
Mediators should always seek to understand their clients’ goals for the mediation. Some mediations are mandated through rules or court orders and the process of mediation isn’t always about settling the matter. Additionally, dispute resolution practitioner, Afsana Gibson-Chowdhury notes that, “[c]lients may not always resolve their dispute on the day of the mediation. If the mediator can open meaningful discussions and generate realistic options, it offers the clients a useful decision-making process.”[6] Holding pre-mediation caucuses and conducting research on the purpose for seeking the mediation in the first place can help the mediator understand and design or alter their services to meet the participants’ specific purposes and objectives.
“People are the heart of services.”[7]
Mediation as a service, is about the people involved – the ‘users’. There are different types of users, both lawyers and their clients. Mediators can get a better understanding of their users by mapping out their journey – this is a design thinking technique. Mapping can be useful in two ways: 1. To understand the facts of each case; 2. To map out the different service experiences during the mediation.
Sometimes, in mediation, the parties are all but forgotten and the lawyers engage in esoteric debates about the law. Such debates overshadow the purpose, intention, and who benefits from the mediation. Mediators can use visual mapping to outline the linear facts and show parties where things may have gone ‘off the rails’ causing the dispute or misunderstanding between parties in the first place. It also allows for a better understanding of and focus on the facts.
Mediators can also use mapping to map out the user-experience from end-to-end. This helps identify opportunities to improve or strengthen the process (i.e. when the mediator should bring the parties together or seek a private caucus). Mapping out the user journey leads to a better service.
“The product is the service is the marketing.”[8]
As with Starbucks, we keep coming back because we like the service. The best mediators have repeat clients, more interest in their ‘product’ and their service offering. They’re in demand and booked for months (or years) in advance because they are their own best marketing.
When you consider that mediation is a service and integrate some service design techniques into your practice, you create a better experience for your users. In mediation, while you don’t necessarily want to see the parties again, a strong service design will keep your services in demand by the lawyers sharing their experience with others.
[1] Richard Susskind, The End of Lawyers? Rethinking the Nature of Legal Services (Oxford University Press, 2010) at 182.
[2] Andy Polaine, Lavrans Lovlie and Ben Reason, Service Design – From Insight to Implementation (Rosenfeld Media: New York, 2013).
[3] Lou Downe, Good Services – How to Design Services that Work (Bis Publishers: Amsterdam, 2020) at 56.
[4] Marshall Schnapp, “Open with Strength – the Power of Opening Remarks in Mediation” (ADR Institute Newsletter: Fall 2018) at 22.
[5] Ibid Downe at 74.
[6] Afsana Gibson-Chowdhury, “Mediation – Creating Optimum Resolutions” (ADR Institute Newsletter: Summer 2021) at 13.
[7] Ibid Polaine et al at 36.
[8] Ibid Downe at 65.
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This post is written by Kerri Salata, a lawyer, ethics, and compliance professional who advises companies on how to meet their legal and regulatory requirements using creative, design-driven strategies. She is the Founder of Kerri A. Salata, Legal Professional Corporation, and also holds the position of CEO at Comply With Me, a Compliance Consultancy Firm known for its innovative approach to regulator-accredited compliance education.
Reviewed and Edited by the ADRIO Newsletter Blog Committee in collaboration with Staff:
Babara Benoliel (Chair)
Ben Drory
Robyn Jacobson
Kim Parish
Tommy Lam (Staff)
The opinions expressed in the articles featured in this blog are that of the respective writers and do not represent the views of The ADR Institute of Ontario.