Our system of law is based on the adversarial process. The Nova Scotia Code of Professional Conduct states that “the lawyer’s function… is openly and necessarily partisan.” Lawyers have to raise every issue and advance every argument, however distasteful, that can reasonably help the client win.

And yet, in the same breath litigation lawyers are encouraged to settle. For those of us who have tried cases, we know that litigation is fraught with risks that we cannot control. We cannot control how the evidence will come out. We cannot control whether our clients will be believable. We cannot even control whether the Court will have the same view of the law. Once the matter is in the Judge’s hands the litigator’s powers of advocacy and persuasion are at an end.

The difficult aspect for the trial lawyer is to shift from an adversarial mindset to a settlement mindset. The two mindsets are conflicting and diametrically opposed. As Adams says, in his book Mediating Justice: Legal Dispute Negotiations (2nd ed.) at p. 21: “Litigation is the antithesis of creative problem solving because the parties are forced to adopt firm, mutually exclusive positions.” At times the trial lawyer feels like he or she is speaking out of both sides of his or her mouth in saying to a client you have got a good case but you should really consider settling.

This is where mediation comes to the rescue. When clients agree to mediate they agree to a settlement oriented process. In mediation the parties are not looking at the problem from their mutually exclusive adversarial mindset. The clients’ mindset and the lawyers’ mindset going into mediation are aligned.

Mediation, therefore, helps bridge that gulf which exists between the two conflicting litigation and settlement-oriented mindsets because it separates settlement from litigation.  By separating the processes, the lawyer as advocate is freed to apply his or her skills to the best advantage for  his or her client in both settlement and in litigation.