We are often asked whether it is appropriate, and if so to what extent, for you to instruct your solicitor as an advisor to your commercial mediation. As far as the mediator is concerned, your solicitor is welcome to attend.
Solicitors are programmed to win
The first duty of every solicitor is to protect and promote his client’s interest. As a result, many solicitors have difficulty in assisting in negotiating a settlement through mediation. Of course it is quite right that each party should come to mediation with the intention of putting his/her case fully and forcefully. Certainly, a party to a mediation should not perceive the entire procedure as a gentle chat with a fatherly figure around the table.
Conversely however, a solicitor who is insistent upon interrupting mediation proceedings in order to score points does not promote the best interest of the parties together, and probably not of his client either. Your solicitor knows what you want out of your dispute. He/she will already have a mental picture of what constitutes success or failure both to him/her and alternatively for you. The fact that you have agreed to mediation does not change that attitude.
If your solicitor strongly believes in the prospect of success of your claim or defence then he/she may well be reluctant to take full account of the legal costs which could be at risk if your case goes before a judge.
Further problems which sometimes arise from the attitude or solicitor inexperienced in attending mediation meetings are: a tendency to treat the dispute as a claim and defence and use of professional language and jargon which may be unfamiliar to the two clients.
Legal costs entitlement
In most cases where solicitors attend the mediation meeting, the Mediator will already have obtained from them some indication of their expectation as to how legal costs will be covered in the event of success of the mediation.
The question of costs may become an important issue to be mediated. As a result it is important that your solicitor has fully explored the issue with your conflict party’s solicitor even if they have not agreed an outcome. Unlike the situation in court, the mediator has no authority to impose or even advise on an appropriate way to deal with the legal costs of you and your conflict party, but will expect that it is an issue to be covered in the course of the mediation.
Accordingly, it is useful to discuss this issue with your solicitor before the mediation.
Your solicitor has a professional duty
Depending on the circumstances of the dispute and in particular, on the quantity of documents, it’s a good idea to remember that your solicitor may well have to undertake 5 to 10 hours in preparation for your mediation, simply to assimilate the paperwork, construct the continuing strategy for your case, liaise with the other side and confer with you to advise and take your instructions.
That process is substantially what a solicitor must do to satisfy his/her professional obligations. As a result his/her likely charge for helping you with the mediation process is likely to be in the order of his/her rate for up to 20 hours.
A solicitors instinct to favour you over your conflict party may prompt him/her to question not only the details of the proposed settlement but possibly even the entire concept of mediation.
When confronted with the possibility of settlement by mediation, your solicitor might also instinctively “promote” his/her own position by exaggerating the chance of your success should your case go to court.
No lawyer will ever tell you that a win is certain. Nonetheless, it is not difficult to make an argument to you that you will succeed in court and that you will recover your costs. In advising you fully, your solicitor should of course also make you well aware of the disadvantages of litigation
He/she must overrule his/her personal interest
Another problem is that every solicitor, in common with the rest of the world, is in business to make his/her living. If you have first instructed him/her with a view to litigation and you then change your mind and go for mediation, your solicitor has lost a very substantial “sale”.
Consider too, that a solicitor who specialises in litigation is programmed to win. Litigation can be extremely exciting. A litigation solicitor pits his/her experience, knowledge and determination against another. Every small appearance before the District Judge in the course of the litigation (little or nothing of which you will be warned about in advance) is an exciting opportunity to test his or her intellectual superiority. But you are not fodder in a game. He or she wants you to win just as much as he or she wants personally to win.
Mediation is often required before litigation can take place
You should also consider that if either side starts a court proceeding then it is extremely likely that on the first case management meeting, the Master or District Judge will order that the parties go away and try mediation first.
If your solicitor has not already recommended mediation by that stage then certainly, he/her is extremely unlikely to resist that proposition now, with that pressure from the Court.
To reach that point you will have incurred the cost of the time of your solicitor, and probably of a barrister, in taking your instructions and working on your case and on the documentation necessary to maximise the chance of your success, whether as a claimant or a defendant.
Your solicitor has a quandary
Will your solicitor now accept that you have paid a good fee to date and that mediation is a fair way to attempt a settlement, or should he or she try to persuade you that you should persevere in court? For many solicitors, this may be a difficult decision.
However, despite those points, in more cases than not the decision is to go to mediation. The fact is that judges at every level of the justice system do now recommend mediation more frequently and more litigants take it up.
So, should my solicitor attend the mediation meeting?
This question is for you alone. You pay your solicitor by the hour so you may consider his time for a day to be a small price for the advice you might need at the mediation meeting.
Do you want the comfort of having legal support at hand? Do you think you will need legal advice in the course of the mediation process? Maybe in the context of the value of the case money is not an issue.
Alternatively, you may feel confident that you can handle the necessary decision-making without him/her. A compromise would be for you to ask your solicitor to make him/herself available on the day of the mediation meeting so that you can leave the meeting to ring him/her and talk over a few points before returning to the meeting, happy with the strategy you have discussed.
How a mediator accepts solicitors
Most mediators take the same position with regard to the presence of solicitors.
He or she is likely to be very happy to welcome your solicitor to the mediation meeting as your adviser. If your solicitor does attend the mediation meeting with you, you could give him/her alternative instructions. In the first place you could instruct him/her to take your case, leaving you to prompt him/her or discuss confidentially from time to time. The second alternative is to have your solicitor on standby when you require urgent professional advice on the phone.
It can also be very useful for you to bring your solicitor in at short notice when the heads of terms agreement is being drawn at the end of the day. His/her presence will give you confidence in the document will be a better version for his/her input. However, it is most important that you do not allow yourself to be diverted from your determination to settle the dispute by a solicitor who is simply not interested in a compromise. His/her status will be as a supporter and adviser.
At the end of the day the question of whether or not to bring your solicitor usually depends on:
- Your own confidence in remembering the detail of your case (almost certainly, you will remember more than your solicitor will);
- Your perceived value that your solicitor might add;
- Any reason at all which might tend to make it difficult for you to speak for yourself;
- Financial considerations of the cost of your solicitor’s time.
Your solicitor can finalise your agreement
The professional skill of your solicitor can be put to best use at the end of a mediation event after the Mediator has drawn in the threads of an agreement between you and your conflict party. If both sides are accompanied by their solicitor then a final agreement can be drawn in detail and signed on the day.
If no solicitor is present then the Mediator will draw a binding memorandum of understanding that specifies the main terms of settlement. However, your solicitor may be able to fine tune the deal, provided your conflict party will accept this, even if his own solicitor is not present.
In our experience solicitors are rarely instructed in a commercial dispute unless the value at stake is very high.
Finally, when you are considering whether or not you are instructing your solicitor to attend your mediation, please draw his/her attention to our advice and suggestions which are intended to assist solicitors in obtaining the best possible deal for their client through the mediation process.
The choice is yours.