When parties attend mediation with their lawyers it is usually extremely helpful to have the lawyers present. The hope is that the lawyers will provide useful legal advice to the their clients allowing them to enter into a separation agreement by the end of the day.

 

Problems can arise when the lawyers disrupt the process rather than facilitate it. The lawyers believe they are acting to assist their clients to obtain the best possible settlement but they can lose sight of the fact that what their clients really want is a settlement and they are often willing to compromise to achieve it.

 

The mediator can help by keeping everyone in a problem solving mode and by identifying the unhelpful behaviour possibly when the lawyer is in a separate room. The mediator can ask each lawyer what he or she hopes to achieve and why. The mediator can also advise the other lawyer not to engage or to push back in order to avoid creating an adversarial cycle.

 

It is important that lawyers prepare their clients by recommending realistic and not overly optimistic outcomes and educating them regarding the emotional and financial costs of proceeding to trial. The mediator can also ask a difficult lawyer to advise their clients if they can guarantee the outcome they are suggesting. The answer to this will almost always be that they cannot.

 

Deborah A. Todd
Deborah A. Todd