Cezary Rogula’s Tips For Participating Students
This article is actually in continuation of an interview the Young Global Ambassadors Programme conducted (see here). Cezary is an Accredited Mediator and an Attorney at Law (Adwokat), Krakow, Poland. Cezary also happened to be part of the 2016 Edition of the IBA-VIAC CDRC Vienna. So, here’s his list of “Please don’t be afraid…” (hints that he frequently gives to participating students)!
- Please don’t be afraid to make the most of your opening statement.
The opening statement is something you cannot overestimate. That is one of the reasons why quite often it is a subject of our feedback during the CDRC. Opening statement lets you list your interests, needs and feelings all at once and in that way, it is a chance to frame the whole future discussion. When we’re talking about an out-of-court mediation, it may be the first real occasion to show the full picture of the problem from your perspective and learning how it looks like from the other side. Please don’t miss that unique opportunity, no matter how many documents you’ve exchanged with the other party in the past.
- Please don’t be afraid to share information.
An issue of sharing information in mediation is a hard nut to crack. You surely will learn how to properly and effectively manage disclosing information during mediation while still respecting such things as trade secrets. On that point a hint from my own experience is that in many instances, sharing information works much better than keeping it just for you. I had numerous cases in which I convinced my clients to share information they were quite reluctant to reveal and it worked very well for them. Additionally, mediation gives you the surplus of telling something you know only to your mediator, if you decide to do so. All in all, I am not trying to convince you to say everything upfront, but keeping too many secrets may not take you any further in the discussion.
- Please don’t be afraid to use the mediator.
Now that is a problem that most lawyers or lawyers-to-be have – we think that we can handle everything all by ourselves. And by doing so in mediation, we miss many chances given by this process. At the same time, many mediators don’t feel comfortable to intervene as long as they may still hear parties talking to each other. This piece of advice is rather a reminder – please remember that mediation involves a third, neutral party, which may happen to be the most helpful in the whole discussion and in many instances it is a party’s representative’s role to trigger mediator’s action. In other words – e.g. when you’re facing a roadblock, please don’t forget to ask your mediator for help.
- Please don’t be afraid to start talking about a difficult topic.
This may sound quite trivial as long as you’re not in a mediation room. Once you’re there, different emotions start to play role and you may be tempted to do everything to keep the discussion as smooth and nice as possible. It definitely shows your good intentions, but talking only about something not very relevant for the dispute or some side topics where you’re sure to agree on with the other party may not lead you towards resolution. In several cases such situation forced me, as a mediator, to play the bad guy and to tell the parties how glad I am they do agree their children go to the best school in the city, but maybe they could share their views on one of the points from their agenda. Their views don’t have to match (and they probably won’t), a difficult issue may create an impasse, but this is something that will get you nearer the resolution of the dispute, which is the reason why we all gather in the mediation room.
- Please don’t be afraid to talk about numbers.
This is a topic that is not popular especially among young mediation practitioners, as talking about numbers is perceived as probably the most difficult topic. At the same time, e.g. during negotiation and mediation competitions, negotiators and mediators in the making may be afraid that by starting bargaining over the sums at the table, they will not be perceived as creative, actively looking for an added value other than money. And afterwards, they sometimes hear that what they did was not very realistic. The truth behind this is that in commercial world, even if that may cause some problems and disagreements, money will have to be addressed. Therefore, even if the first sum you’ll present is immediately rejected or even becomes an object of ridicule, please don’t be afraid to say it out loud, because it will still push both parties towards the resolution of their dispute.
- Please don’t be afraid to use legal arguments during mediation.
And the list of hard topics during mediation continues. While observing young practitioners in mediation competitions, I sometimes see how they strive against using law in mediation. At the same time, the setting of such projects illustrates the division of roles at the table. It is calming to see lawyers to be gentle, concentrating on the business aspect of the issue at stake, but coming back to reality, one of their specific tasks is securing legal side of the client’s case, which is not always that pleasing. It is not easy, because this is another field where one should find balance between quarrelling about provisions of the contract and the surrounding of parties’ businesses. Nonetheless, since an expert in the field is present in the room, he or she may try to elaborate on legal argumentation in support of the represented party, even if that is made only in his or her opening remarks. At the end of the day, legal boundaries are also part of the dispute and parties may be eager to learn about perspectives on that matter as well. I don’t want to say that lawyers should spend days on fighting about rules on admissibility of evidence, because mediation indeed is not a place to do this. However, letting go all of legal arguments could mean lost opportunity, whereas mediation room gives the chance for all the topics to be heard, contrary to the courtroom.
- Please don’t be afraid to say no, also to your mediator.
Last but not least, the word “no”, when needed, also should find its place in mediation. Plenty was already said and written about this, and it is usually summarised by one sentence: “Don’t agree to something you don’t want to agree”. All I want to do here is to reiterate this guideline, which is very important in mediation – a process that is flexible and informal, dependent entirely upon the parties. This concept is very broad and it does not only refer to parties’ proposals, but also to mediators. To illustrate it, let me give a specific example, not very common in practice. From time to time you may face mediators that pay a lot of attention to a certain order and the process itself. It may be beneficial for the parties, but sometimes parties can have different ideas in mind, e.g. presenting a partial, initial option at the early stage of mediation. In response, they may hear mediator’s suggestion that this should wait, since some issues ought to be elaborated on earlier. If the party really thinks he or she does not want to follow such pattern, he or she is absolutely free to disagree with the mediator. I don’t want to suggest here you should be a rebel and ignore your mediator or to be a mediator without any initiative, because it is the mediator that indeed possesses knowledge and tools to help reaching a mutually beneficial solution, even if sometimes it sounds a bit patronising. An extreme example I presented rather aims at showing how flexible mediation is and how broadly parties may benefit from it.
I truly hope you will find these guidelines helpful in shaping your own, extraordinary negotiation and mediation practice. I am pleased I was given the possibility of sharing all these thoughts with you and thank you very much for inviting me for that interview. I enjoyed every minute spent on it and my last sentence would be: I keep my fingers crossed for you or, as you would say in Poland, I keep my thumbs fisted for your good luck!
published May 21, 2017