In this article, I explain the rather sensitive issues around:
- whether or not your solicitor will recommend mediation;
- who your solicitor might recommend as your mediator;
- whether you should bring your solicitor to your mediation meeting and if so, what his/her role might be.
If litigation is underway, then you will already have instructed a solicitor and he/she will be deeply involved in your present dispute. If however you have come to consider mediation before instructing a solicitor then his/her presence through the mediation process, is likely to be the exception rather than the rule.
In that case, a solicitor is likely to attend only in high value cases and situations where you or your conflict party do not feel sufficiently confident in negotiating your case personally. Every mediator is likely to accept whatever decision you make.
Not all mediators are lawyers
First, a word about lawyers and non-lawyers. When anyone talks about mediation, there tends to be an assumption that the mediator will be a solicitor or barrister. However, you do not have to be a lawyer to be an extremely good mediator. Those who are not lawyers tend to be specialists in some well-known technical area such as surveying, human resources, accounting or engineering.
The up side of using a non-lawyer specialist is that he/she is likely to have deep technical knowledge of an issue relating to his/her professional experience. The downside is that he/she will not have the legal knowledge to understand what will happen in the litigation process. Some non-lawyer mediator’s have specifically undergone training in law so that there is no such downside. Some non-lawyers have years of experience interacting with the Law and/or undergone a level of basic legal training specifically to enhance their mediation practice.
Your mediation is your solicitors loss of fees
Your solicitor 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”. I was in private practice for 20 years. Most of that time was spent as a litigator. I know how a litigation solicitor views mediation. I find it inconceivable that any solicitor will fail to take some account of his/her own interest in the extent of his encouragement to his/her client to go to mediation. This applies whether you:
- already know something about mediation and have consulted your solicitor with a view to asking his/her advice about mediation;
- have been in touch with your solicitor about your dispute and the question of mediation has come up for discussion as one of your options;
- are already committed to litigation.
If you are into litigation already, then it is highly likely that a judge, at some level, has already strongly pressed the two opposing solicitors to persuade their clients to accept mediation before he/she is prepared to start to manage the litigation process in detail. Even in those circumstances, one or both solicitors may well think twice before making a recommendation to the client, to go for mediation.
Your solicitor is not thinking only about money
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 do not get me wrong. 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.
The first duty of every solicitor is to protect and promote his client’s interest, as he/she sees it. Your solicitor’s training and experience is about the legal process. Even when to solicitors decide to try to achieve a negotiated settlement (very often “at the door of the court”) they will be considering what the outcome would be in court. It would not just be wrong, but unprofessional, if your solicitor’s advice took account of what your case was costing you in lost sleep, lost productivity and the cost of lost opportunity in your business or everyday life. So when your solicitor is half-hearted about mediation, this legalistic approach may well be one of the reasons.
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.
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.
If your solicitor has not already recommended mediation by that stage then certainly, he/she is extremely unlikely to resist that proposition now, with that additional 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.
You scratch my back . . . .
Many firms of solicitors now have one or more senior staff trained as mediators. However, there is no way, professionally, that a solicitor or employee in professional practice would be permitted to act as a mediator in a case involving a client of the practice.
So, if the partners have decided to seek mediation business, they have to rely on other sources. A commonly used arrangement is for a law practice to make an arrangement with another whereby the staff in each firm recommend the Mediator in the other firm. Sometimes such arrangements are made within a group of law firms.
Although impartiality is absolutely the most important feature of mediation, cross-referencing, as described above, in my personal opinion, will inevitably set up conscious and subconscious tendencies for mediators to prefer the interest of mediation participants who have been recommended by a friend. With the best goodwill in the world, I cannot see that such a tendency can be avoided.
On the other hand, if there is no such arrangement, then there is no reason to doubt your solicitors opinion in the recommendation he/she makes. The moral of that story - find an independent mediator.
There may be 1000 other reasons why your solicitor will recommend a particular mediator. Your guess is as good as mine as to what those reasons might be and whether or not the recommended mediator is more or less likely to help you negotiate a satisfactory settlement.
As you might expect, mutual arrangements also apply to other professions too.
The role of your solicitor at the mediation meeting
If you are already engaged in litigation, you will almost certainly instruct your solicitor to attend the mediation with you, leaving it to the mediator to make sure all those present have appropriate opportunities to speak.
All that follows is based on the presumption that you are not yet engaged in litigation, but that you may or may not have taken legal advice. In that case, you will wonder whether or not you should instruct your solicitor – or your barrister – to attend the mediation meeting.
You could instruct your solicitor:
- to negotiate on your behalf, lock, stock and barrel;
- to sit in throughout the mediation meeting, interrupting where you or he/she need to talk together in a separate room;
- simply to be available to confer with you and the mediator in “caucus” in a separate room from time to time;
- to be on call in his/her own office in the event that you might urgently require legal advice.
Even if solicitors are present, a mediation meeting is not like a court room. Far from it. It’s more like settling down in someone’s sitting room with a cup of tea. Nonetheless, you still need to be extremely positive. Have your arguments lined up, preferably with notes you can refer to easily. Here is another article about what happens on the day.
The most important difference between you taking your case and your solicitor doing so is that only you know what you really want. Only you know what might be acceptable. Only you can decide at the end of the day whether to accept what is on the table.
If your solicitor is inexperienced at attending mediation meetings, here are some of the points you might look out for:
- Your solicitor might use your mediation meeting to practice his/her speaking skills, impressing you, and scoring points. That might not help you.
- It is likely that your solicitor will know the facts upon which your case is based and will be competent to apply the law to those facts. However, very few solicitors have been in business personally and consequently their experience of trying to run a business through the stress and time wasting of a litigation case is likely to be very low.
- Your solicitor is unlikely to have considered what I call “lateral” solutions which are not directly related to the law. Mediation is about finding solutions today rather than at the door of the court, £250,000 later.
- If your solicitor believes you have a strong case, 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 in the final order is not what you had hoped for.
- Some solicitors try to address the mediator instead of your conflict-party, using professional jargon which may be unfamiliar to you and to them.
To your mediator however, dealing with solicitors is simply part of the job. He should start with the assumption that solicitors are there to help in the mediation process, and expect them to do just that. If there is any problem, then it is up to the mediator to identify and deal with it. He should always understand that if you have asked your solicitor to attend the mediation, it is because you value his/her advice and presence and it is not part of the mediator’s job to interfere with that relationship.
So, should my solicitor attend the mediation meeting?
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.
- 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.
- your confidence in your own negotiating ability.
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.
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 guide the participants in drawing a binding settlement agreement that specifies the terms of settlement. However, your respective solicitors may be able to fine tune the deal.
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.
Please tell us
As a mediator, it is important that I know whether or not you intend to bring your solicitor to your mediation meeting. If yes, that is fine by me. He/she will be very welcome. We shall make sure your conflict party has the same opportunity. If possible, I may well talk to both solicitors at an early stage.
Of course, I quite understand that this might be a decision that you take or change at any time. Please bear in mind that if you decide late in the day that your solicitor shall attend then it may be necessary to defer the mediation meeting so that your conflict party has the opportunity to bring his/her solicitor too.
When you are considering the time you need for your mediation, please bear in mind that the involvement of solicitors tends to extend to the total time requirement. This also applies of course to any other attendee who might wish to speak on your behalf.