Mooting competitions have become a common agenda for most of the aspiring lawyers of tomorrow across the world. The usual format of such competitions, however, takes the form of mock litigation or arbitration proceedings, whereas mediation often remains terra incognita for law students who are still at the early stages of familiarizing themselves with the legal profession. Hence, for a brave team of three law students from Queen Mary University of London (“QMUL”), none of whom had any prior experience in mediation, the decision to participate in the CPR International Mediation Competition 2021 (“CPR Competition”) was akin to a real baptism by fire.
Reflecting on their experience in the CPR Competition, it became clear that one of the most valuable experiences was the lessons learned from both the participants, as well as the distinguished alternative dispute resolution (“ADR”) practitioners who acted as judges. The competition structure not only simulated realistic challenges but also offered insight into the process of mediation and served as a basis to explore best practices in mediation as future ADR lawyers. Thus, the team would like to share the lessons learned from the CPR Competition to incentivise students to explore ADR by participating in mediation competitions and to provide information on what such competitions involve.
The team was represented by a negotiations team comprised of Ms. Jessica Sblendorio, LLM Comparative and International Dispute Resolution Student, as counsel and Ms. Andra Tofan, LLB English and European Law Student, as client, as well as Ms. Parnian Mohammadi, LLB Law Student, as mediator. With QMUL participating for the first time in a mediation competition, the team’s priority, with the guidance of their coach, Ms. Lilit Nagapetyan, a PhD candidate from QMUL’s School of International Arbitration, was to learn about the process of mediation and improve both their communication and negotiation skills in an individual capacity and as a team.
Overview of the CPR Competition
The CPR Competition is organised on a yearly basis in São Paolo, Brazil. The fourth edition was conducted online for the first time via Zoom between the 13th and 21st of March 2021, and gathered students from universities located in North America, South America, Europe, Asia and Africa.
The CPR Competition offers students the opportunity to learn and develop practical skills for mediation and negotiation through role-playing and engagement with a realistic dispute submitted to mediation that is drafted by experienced mediators and ADR practitioners.
The problem drafting committee challenged participants with an engaging and commercially realistic dispute submitted to mediation where time was of the essence against the political backdrop of a civil war and developing humanitarian crisis. As the competition progressed, the confidential sheets released prior to each round reflected an evolution of the issues. This evolution informed the team’s strategy for approaching the roles of client and counsel and which arguments would support the assigned roles.
Lessons Learned from the Parties and the Mediator
The Role of the Mediator: Challenges and Key Learnings
An important learning from the competition was the ability to demonstrate a command of the mediation process and maintain control of the discussions, without excessive interference and interrupting the flow.
The student mediator-participants should have recognised the fact that their role is purely facilitative, and not to present solutions but rather to aid the parties to brainstorm solutions on their own. Therefore, preserving a good flow of discussion between the parties remained a priority for the student mediators. Otherwise, unnecessary interventions could stand in the way of fruitful discussions.
Furthermore, the competition provided the opportunity to practise making effective use of available tools in mediation, including caucuses, observing body and verbal language, visual clues, and timing considerations. One of the key revelations was the level of flexibility and on-the-feet thinking that was required from all the participants, especially the mediators who acted as the ‘compass’ in the room. The team also quickly learnt how these caucuses with the parties represent an excellent opportunity to build trust between the mediator and the parties and to effectively clarify the parties’ real needs, interests, and concerns at an early stage, whilst preserving confidentiality.
Lastly, in the role of the mediator, the team learned that the ability to understand the parties’ interests and concerns, even where presented at short notice, is important for navigating a solution that satisfies and addresses the parties’ needs. Focusing on progress was crucial as it became clear that reiterating issues from previous sessions will stall the mediation and potentially impede the parties from reaching a favourable solution. However, the participant-mediators still had to ensure that the parties felt comfortable to voice all of their concerns at every stage of the proceedings, even if this meant past issues were raised again.
The Role of Counsel and Client in Mediation: Challenges and Key Learnings
In order to successfully find resolution or progress in a mediation, it is critical for the parties to remember that mediation is a non-binding facilitative process and not the same as binding adjudication procedures, such as arbitration or litigation. Mediation is designed to allow the parties to discuss interests and ideally resolve their issues without incurring the expensive costs of a drawn-out adjudication process.
Furthermore, the team learned that the role of counsel is not to craft the best legal arguments or even cite legal references in support of the client’s position. Rather, counsel must consider how to use the law to support their client’s positions, both from a commercial and legal perspective, and not focus on which party breached which obligation. Accusatory language and tactics may tend to, put the parties more on edge, and impede meaningful progress in negotiating resolutions. It is important to avoid this trap and not engage with opposing counsel in the event the mediation goes this way–it is better to focus on the issues and interests.
Moreover, an important part of successful negotiating and representing a client in a mediation is to be prepared. For the competition, this preparation required the team to evaluate the key issues at each stage of the mediation in accordance with new confidential information and to discuss strategy on how to best address those issues. This process revealed the kind of practicalities that need to be considered, and how counsel and the client can work together to provide their respective insights on the legal issues involved and commercial interests and considerations.
In both negotiation and a mediation, a critical part of the process is to gather information and this can be through asking questions and listening to the opposing party. Without this process, counsel cannot fully advise a client on the strengths and weaknesses of a case. Similarly, a client would be unable to determine whether there are options for leveraging interests and if there are any common commercial interests between the parties on which to build goodwill. Furthermore, a key learning point from negotiation simulations and the competition is to not to be afraid to challenge a response or restate a question when your initial inquiry was made, particularly if that information is important to a party’s interests. A skilled counsel or client may be able to provide a very articulate response that deflects the question and directs the conversation into a comfortable topic of discussion.
Finally, the main challenge and goal from the coach’s perspective, is to help, where necessary, the participants to adopt the voice of the client and to identify and vocalise its interests whilst making it sound aligned with the interests of the other team. The key to successful mediation advocacy was to focus on the commercial aspects of the problem, despite all the seeming temptation of the lawyers in-the-making to outshine in the legal arguments. Therefore, the team’s coach highly encourages future generations to participate and make the most of their experience of this and other mediation competitions, as those provide with both legal and commercial skills which will prove invaluable in their future practice.
The Final Round of the CPR Competition was live streamed and can be accessed here.
The team achieved the highest laurels by winning the competition as the top negotiations team, comprised of Ms. Sblendorio as counsel and Ms. Tofan as client, with Ms. Mohammadi progressing to the semi-finals in the mediator category. Ms. Sblendorio also received an individual award for “Best Counsel” in the competition. Notably, QMUL was the only participating university progressing from the preliminary rounds to the final rounds in both the negotiations team and mediator categories.
This piece was authored by Ms. Jessica Sblendorio, Ms. Andra Tofan, Ms. Parnian Mohammadi, and Ms. Lilit Nagapetyan.