The importance of the lawyer’s role
In the majority of mediations I undertake, both parties are represented by solicitors. Sometimes, Counsel will be present as well.
By and large, having both parties’ lawyers present is a good thing.
In my own experience, there have been very few occasions, on which, the legal teams have disrupted discussions or created barriers to settlement (though I have heard of some).
Devil’s advocate
As a mediation progresses, much of the focus can turn to ‘reality testing’, whereby the strengths and weaknesses of the parties’ positions is explored in the mediator’s individual, confidential sessions with them. The mediator is likely to challenge the parties to consider what the alternatives to a settlement might be, including the impact on the parties’ legal spend if their litigation continues. Although no solicitor necessarily enjoys seeing the strengths of their client’s case being called into question, every lawyer will appreciate that, in court proceedings, there is no guarantee of success or outcome. This is one of the most important things that litigators are trained to do, as early as possible: to be clear with their clients about the risks inherent in proceeding with litigation and the importance of considering and engaging in settlement at every conceivable stage of their case. It is with the above point in mind that I find the presence of helpful, pragmatic and constructive lawyers at mediation to be crucial to the parties’ prospects of success. Those that encourage their clients to be realistic about the result they can expect to achieve in their litigation will help the reality testing process outlined above.
A star performer
In one recent case, I found at the start of every private session I attended with one of the parties, their solicitor had, whilst I had been speaking with the other party, been busy scribbling notes in front of the client on a flipchart I had been using myself in previous discussions.
The solicitor had written down details of offers, the effect of each on the client’s costs and the best and worst case scenarios that might apply to the litigation.
The solicitor had actually been supplementing the work I had already carried out and his impact was extremely useful. He had reinforced a number of points I had made to the client in previous sessions and this helped the client understand his position much better.
Our own guide
Last September, we published a new guide for solicitors preparing for civil and commercial mediations.
We consider that the more engaged lawyers are in the mediation process, the better the outcome is likely to be for their clients.
Hopefully, the guide has proven useful to those involved in cases that are likely to proceed to mediation. If you would like to download a copy, please click on the following link: http://www.leonardgraymediation.co.uk/succint-guide-civil-commercial-mediation/.
The author: John Appleby
