Historically, many mediators have felt that lawyers’ presence in mediation would be disruptive and distort the process and outcome. As lawyers have learned to support their clients in mediation as the primary decision makers, they have also learned a number of skills to enhance the effectiveness of their clients’ participation in mediation. Our view is that if lawyers are suitably brought into the process, their participation adds great value in the following ways.
The lawyers’ ability to protect their clients provides their clients with some of the benefits that the clients would have in negotiations conducted through lawyers without the clients losing control over the decision making process. Lawyers can prevent their clients from reaching agreements that they would later regret by ensuring they fully understand the agreement, its consequences and how it meets their needs. Lawyers can also help their clients identify their interests and use those as anchors for the negotiation process rather than taking rigid positions. They can help counteract any tendency of clients to be over-accommodating. Lawyers’ support of their clients can allow clients to actually be more open than they would be without the security of having their protectors in the room.
In addition, having both lawyers in the room can clarify the law for each of the clients, particularly when the lawyers are willing to talk about both the strengths and risks that their clients face in going to court. This provides clients with an unusual opportunity to understand the law without going to court because they receive a full picture of the law from each lawyer rather than only hearing about the law from their own lawyer, which may have been presented in a light most advantageous to the client.
Lawyers can also participate in the mediation process in a way that will be useful for those particular clients. Lawyers often know the best methods and resources for gathering the necessary and accurate information so that the clients are in a position to make decisions based on full understanding of the situation. Lawyers are particularly skilled in thinking creatively about possible solutions, and if properly channeled not to usurp the client’s role, can bring that expertise into the room to expand the range of opportunities that might be best for both parties rather than thinking in a more legally restrictive way. Lawyers can also provide a reality check to ensure that a tentative agreement can actually be effectively implemented, including anticipating problems that could come up down the road and addressing those as part of the agreement. In addition, as lawyers have evolved to be more attuned to the emotional and communication dimensions of the process, they can help their clients cope with their emotional reactions and communicate effectively during the meetings.
On occasion, having consulting lawyers outside the mediation room can become problematic if the lawyers do not support the process or if the differences in their advice to their respective clients create confusion or distrust. In those instances, it may be important to have the lawyers come into the mediation meeting so that the issues can be dealt with head on rather than having the lawyers undercut the process outside the room and not be able to deal with it directly.
As mediation has evolved, lawyers’ sophistication and understanding of mediation has increased. If we can meet the challenge of reducing adversariness, lawyers’ participation in mediation can result in a more satisfying process and outcome.