Parties arranging a mediation occasionally ask whether they need their solicitor present. My answer tends to be, “Strictly speaking No, but….”
Here are some of the many reasons why I would always prefer to have lawyers present.
- Wise lawyers establish a useful working relationship with their counterpart and collaborate with them in looking for a deal which might be able to accommodate enough of what each party needs to be workable.
- They give their clients realistic advice as the day progresses and issues are explored.
- They can temper the impact of influences from outside the room – parties not infrequently tell us how sure they are of their case because “cousin John” or “a barrister friend” has told them they are going to win.
- They can alert the mediator to issues in their room.
- They provide flexibility as to who the mediator can gather together. In some types of dispute (inheritance for example), the parties will frequently not wish to meet, and meetings between the mediator and the lawyers will often be a constructive alternative.
- The lawyers are best placed to draft the settlement agreement.
Lawyers have a crucial role to play in mediations.