The vast majority of lawyers are keen to take advantage of the opportunity the mediation process offers for a sane and sensible exit from a situation which, for any number of reasons, a client can find deeply worrying and hard to manage. There remain, however, some lawyers who approach mediations as quasi-trials. This may be through inexperience and lack of confidence, or just plain cynicism; either way, it does not, in the overwhelming majority of cases, serve the parties well.
A well-managed mediation gives the parties an opportunity to take back control of their problem – often the very thing these lawyers seem to fear. That is a pity. It would be much better to encourage their clients to make the most of the opportunity that mediation provides for them to find a workable solution. This means breaking out of trial mode and entering problem-solving mode. It also means having the courage to allow their clients to speak for themselves during discussions with the mediator.
The best mediators support and enable the parties and their lawyers in this process, and are not content to allow a formulaic approach to the day. They have the skills to assist the parties in thinking differently.
Providing they have had solid advice, clients are the best judges of their own needs – and the proper role of lawyers is to enable rather than hinder. Whilst it is easy for a lawyer to have a strong view as to what an appropriate settlement should be, it is the client and not the lawyer who has to live with the outcome and it is consequently wrong for lawyers to try to put fetters on their clients or, as some would say, to “protect them from themselves”. There is always the ultimate safeguard that at the end of the day, the parties are not obliged to settle. If the deal on the table is good or acceptable, the parties will take it. If not, they are free to walk away and continue with their litigation.