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Project résumé


People behind the project


Certified mediator, member of Young Mediators Initiative at International Mediation Institute. Before entering the mediation field, for over 10 years, initially as a law graduate, later as a legal advisor trainee, Lukasz had been working as a litigation lawyer. He finished legal advisor training at District Chamber of Legal Advisors in Warsaw in 2010. Currently he works as a mediator, negotiator and conflict management and dispute consultant. As a consultant he's also involved in projects concerning the quality of client service in law offices.

MY LINKEDIN PROFILE

LUKASZ LANIECKI

Mediator | Negotiator | Lawyer

+48 88 33 88 408

lukasz.laniecki@lanieckilegal.pl


Official mediator listed on The President’s of The Regional Court in Gdańsk list of official civil and commercial mediators. A lawyer and English translator. In 2012 he finished notarial apprenticeship and passed the notarial exam. Currently working as a mediator and a notary’s deputy in notarial office in Rumia. The main area of specialization is corporate, real estate and medical mediation.

MY LINKEDIN PROFILE

MICHAL RYSZARD WYSOCKI +48 505 015 545

Mediator | Negotiator | Lawyer mediator.wysocki@gmail.com


Project’s mission and features


MISSION This project concerns solely the role of attorney in mediation and is the first of its kind in Poland. Through project’s initiatives we intend to enable mediators and lawyers to share their knowledge and experiences about participating in mediation, which will lead to its wider use.

FEATURES Beneficiaries Project beneficiaries are litigation lawyers who have no experience representing their clients in negotiation and mediation.

Project’s features Currently (blog, Linkedin group, facebook fanpage, Twitter and Issuu profiles) In future (e-books, trainings, seminars, webinars, regular meetings)

VIEW:

BLOG

FACEBOOK

TWITTER


Our partners about the Project


Unconventional methods and communication channels like blogs and social media, as well as gathering partners and media support result in a change of lawyers’ attitude – definitely negative in the beginning. Sharing knowledge using a “step-by-step” method and practical advice, with connection to the current legal regulations and jurisprudence is a great idea. Thanks to this project a kind of a practical “guide to mediation” is being systematically created. This is valuable not only for lawyers interested in mediation as a way of efficient conflict resolution, but also their clients.

Jolanta Budzowska – attorney Budzowska Fiutowski & Partners / Editor-in-chief at MIDA „Lawyer in mediation” is an exceptionally accurate and needed showcase of the meaning of mediation in lawyers’ practice and the meaning of lawyers in mediation. Maybe it is some kind of a shortcut – but when we are sick we go see a doctor, and when we face a dispute we go see a lawyer. It’s the lawyer who has the ability to analyze and evaluate the situation. It’s the counselor who will show the client what possibilities she/he has and what will serve her/him best. That same counselor will show the client a solution and help her/ him implement it. The knowledge of mediation and the knowledge of a role a lawyer has to play in mediation is not a part of lawyer’s education in our country. „Lawyer in mediation" fills this gap.

Michał Paprocki – attorney Chmaj & Partners I'm pleased that by following the project's blog I can enrich my knowledge about mediation and also my positive opinion about attorneys is being shaped. The project's blog is often an inspiration for members of our Academic Arbitration and Mediation Club "Consensus" at Cardinal Stefan Wyszynski University in Warsaw and I admit that our discussions are much more insightful thanks to articles provided by the blog's authors. I hope to see this project developing further which is what I wish to the project's members and to all those, who view mediation as an efficient method of dispute resolution.

Dawid Malkowicz – Arbitration and Mediation Club "Consensus" at Cardinal Stefan Wyszynski University


Sample blog posts


Perspectives on the development of mediation Some 30 years ago, when the mediation was starting to take off as an alternative for court proceedings in USA, the lawyers were strongly against it, which was evident by the attempts to discredit the new solutions and of course by the sole refusal to grasp them. Apparently this was caused by a few factors. Among them the most important were: the fear of losing some of the business, the fear of the unknown and the fear, that the new solutions may lead their clients to unexpected results. After a while it turned out that all those fears were exaggerated because: 1/ even if the case was mediated, the clients still wanted to use their lawyers (but their role was different and the lawyers needed to adapt), 2/ it turned out that the mediation (at the very outset mistaken for meditation) is a procedure which can be seized and described, 3/ the mediation yielded extraordinary results. During those past 30 years we didn't hear about lawyers winding up their businesses on a large scale due to the rise of mediation. The lawyers quickly learned how to make use of mediators, adapted to the new role (lawyer in mediation) which to lawyers meant rather a development of a new business. The lawyers who attended the mediation with their clients also noticed that this new situation doesn't necessarily mean no or less money for them as the client paid them for legal assistance in the whole mediation procedure - i.e. before, during and after) which taking into account its speed (as opposed to court proceedings which take years) meant similar (if not better - monthly) money. What we observed 30 years ago in USA, happens to be the case today in Poland. The people's awareness and the use of mediation as an alternative to the court proceedings are growing year by year, yet still are at a relatively low level. This applies equally to lawyers (agents, judges) and to the rest of the society. Also the factors that cause that the popularity of mediation among lawyers is low are similar to those in USA. Worth mentioning is the fact that there are no specific circumstances, due to which the mediation couldn't grow in Poland to a scale comparable to the one in USA or the one which we can right now see in western Europe. Of course there are voices of doubt, however in my opinion those are a sign of impatience of their authors rather than some real hurdles which impair the growth of mediation in Poland. Enough to say that elsewhere it also didn't happen overnight, but took a lot of time. The growth of mediation is also supported by other factors, and in particular the more than ever present need for cost cutting on the clients' side (who themselves tend to lean toward alternative dispute resolution) as well as their expectations toward lawyers, something that is being emphasized today by the legal professionals worldwide (the clients expect more than a simple legal advice, they expect added value from their lawyers which mediation can yield).


Impress, but do not surprise Creativity is a desirable trait in mediation - it is creativity that lets the parties find different ways to meet their interests. The biggest difference between parties' demands and interests is that there is only one way to meet a demand, but often many ways to serve an interest. A lawyer can help the party by jointly trying to find possible solutions which they then could present to the other party as ways of meeting divergent interests. A lawyer has thus a very important role to play in mediation, i.e. to appropriately prepare with the client for mediation, as well as to assist the client in mediation. What a lawyer ought to remember is that in mediation he/she is not the one playing the first fiddle (as it is the case in the court of law) but the client is. As far as the expectations of the majority of clients at the outset are concerned, in particular when the client is emotionally very involved and wants nothing more, nothing less but the court battle till the very end, a lawyer should not turn to the other party for negotiation without client's consent. It's quite obvious. Equally, a lawyer should not decide for the client in the negotiation or mediation without having it all discussed with the client beforehand. Behavior that is normal and desirable in the court room, i.e. making some decisions (especially procedural) without having them discussed with the client beforehand (which the client often couldn't even understand, because he/she knows little about the procedure) can lead to a disaster in mediation. Personally I know a few examples where lawyers (who followed the court room habits) made decisions for the client in negotiation or mediation without having them discussed with the client beforehand, what infuriated the client and caused an impasse and in some extreme cases caused the negotiations to break down. The cases I know include: making an unauthorized demand which preconditioned reaching of settlement, refusing to provide the other party with information despite client's clear guidance to do so, refusing to provide the other party with settlement proposal, unauthorized talks with the other party. In all above mentioned cases the lawyers thought that they will impress the client as guards of this client's interest, and all of them later regretted having made such decisions which was due to the lack of understanding and preparation for the role of attorney in negotiation and mediation.


Mediation – an innovative lawyer’s choice In the special addition to „The Forbes Magazine”, called “Law for the entrepreneur” a report was featured concerning 10 future trends in legal services. Legal offices and practitioners who fit the description are being described by the authors as “innovative” and are expected to rule the legal market in the years to come. The thesis is quite interesting and worth analyzing, especially that 3 of these trends can lead to popularization of mediation. These are: 1. clients’ economical approach to legal services, 2. lawyer as an expert and strategic advisor, 3. clear and logical information for the client. Clients’ economical approach to legal services means a soon dusk of most popular form of lawyers’ remuneration – the hourly rate wages. Because these do not include many aspects of a particular case, they are being replaced by various models of lump sum forms of remuneration. Clients want to control not only the true cost of a case, but also the alternative costs. The time of so called “economic crisis” has increased clients’ awareness of their legal rights, as well as their focus on the actions undertaken by hired legal professionals. This is why very so often remuneration or at least its part depends on the final outcome of their efforts. Combination of this trend and the possibility of reaching flexible agreements fast can enable the entrepreneurs to fully reach their goals. An era of lawyer-knight, who fiercely fights to assert the client’s rights in court, is passing to history on our eyes. The future, especially in business, belongs to expert-lawyers who are able to combine the elements of law and economy. It is their assistance that gives the client practical solution to a problem, not an abstractive and theoretical legal opinion. Today a lawyer is not a mercenary, hired when a war breaks out. Today he/ she is a strategic advisor, hired beforehand, not to let the war break out. Gifted lawyers know that their client should be kept up to date and that the client should always have the last word. A well treated client will appreciate a true partnership. Even the best piece of advice is worthless when the recipient cannot decode and understand it. The ability to put complicated structures in simple words and setting it in business context is nothing new, but nowadays it is not enough. An innovative lawyer ought to offer the client simpler and friendlier solution in comparison to judicial process. The best known there is mediation. A mediation proposal proves that the lawyer regards client’s interest as the most important value and that he/ she respects client’s time and money. Thus the lawyer puts himself/ herself in the strategic advisor’s position, who knows that a long term relationship with a client is worth investing in. A good lawyer enables the client to act and stay at the helm of the business, while he/ she watches over all these actions. This is how to achieve these goals. Taking the case to court cannot help achieving any of the abovementioned points. An innovative lawyer definitely chooses mediation.


Make the change - how to promote mediation in Poland? How to promote and foster mediation in a new environment? I believe that to be a very important issue. In this case the environment is Poland, which has introduced mediation as a legal concept for civil and business disputes in the year 2005. Since that time the idea hasn’t actually flourished. Neither the lawyers nor The State has done any real job to convince people that it is simply beneficial to everyone. Truth is, we had a few attempts to change that, even one campaign run by The Ministry of Justice in the year 2011, but all these efforts have almost gone unnoticed.

The outlook on mediation in Poland a.d. 2013 Mediation in Poland seems to be like o ghost. A few people talk about it, but almost no one has experienced it. When it comes to mediators, there is no certification, and everyone can become one. To be the so called “official mediator” (that is to be on the special list held by the President of The Regional Court) one has to become a member of an organization that will vouch for him – but not necessarily train him. Accordingly all these people are hobbyists gathered around a few institutions, who attend mediation sessions from time to time (usually family or parental matters). Some figuring on the lists have enlisted just because they were offered so and surely forgotten they still hold the distinction of an official mediator. The whole idea of these lists was to help judges decide whom to choose when they decide a court appointed mediation is a good solution. The mediators were supposed to deliver a CV and Regional courts were supposed to have special coordinators to create real links and coordination. Sadly, the judges don’t seem to believe in mediation (or mediators’ qualifications) and such mediation happens quite seldom. Moreover the coordinators are almost nowhere really doing much to promote ADR and assimilate mediators to the courts and judges (the District Court in Lublin seems to be one exception). To give one example – I know a mediator who is the only “official one” in the area of 2 District Courts and he still hasn’t been given even a single mediation in 10 months!

The question And here we have a typical mediator – at the brink of the year 2013, trying to build his mediation practice in Poland, and still much is amiss... After focusing on his own development he tries to put his message across and soon finds out, that promoting his services means promoting mediation all over again. To sum up, there is no competition and no market – so, on one hand one doesn’t have to offer anything specific when becoming a mediator, but on the other “just being there” is not enough - no one feels the need to search for a mediator, since mediation is not known… So the question becomes: how can WE make the change?



Lawyer in mediation