Mediation: Lawyers in the Room – No Worries!

It is not unusual for us, to have some parties with no representation express apprehensions about another party’s lawyer participation in an upcoming mediation session. To help you conquer these fears, you will find below an overview of the most common concerns voiced by the parties who attend mediation without a lawyer by their side when another participant will be assisted by an attorney (1). Then, we will try to depict, to the best of our abilities, the reality of such mediation sessions in an attempt to allow you to overcome the myths and the worries that go with it (2).

1). Main concerns of unrepresented parties in a mediation

If you are concerned about not having representation during the course of a mediation session, you are not alone. Below is a synopsis of the top concerns of non-represented parties:

1-1). The lawyers will be using mediation to gather information about my case

In other words, there is an anguish that some attorneys view the mediation as an opportunity to get more information about their opponent’s case without giving up any information about his/her client’s case.

1-2). Lying in mediation

Because mediation is confidential and what is said in the medication cannot be repeated later, oftentimes some non-represented participants to a mediation wonder if some attorneys will resort to making untrue statements in order to coerce them into an agreement.

1.3). Bullying in mediation

This is a major concern of non-represented parties to a mediation. As an example, let’s say an attorney may urgently want a case to settle. He/she may not want to try the case because he/she feels that his/her client's case is weak. If negotiations stall, can the attorney resort to some form of coercion in order to convince the unrepresented party to settle?

1-4). The lawyer will be using the mediation as a delay tactic

Another worry is that an attorney wants a delay in the case and will be using the mediation as a delay tactic because he/she knows that if they go to court the Judge will not agree to a delay. In this configuration, the attorney would only agree to the mediation as it will take some time to schedule the mediation and for the mediation to be conducted, thereby giving the attorney the delay, he/she desires to better prep a file.

2) Why unethical behaviors in mediation would be an uphill battle for lawyers?

There are many reasons why the above-described behaviors on the part of an attorney are highly unlikely to happen. Here are the most relevant ones:

2-1) Attorneys have an ethical obligation to participate in good faith in mediation. That means that a). they need to do what they can to facilitate the mediation and b) they are forbidden to take actions that intentionally interfere with or defeat a successful mediation.

2-2). Mediation is confidential. Everyone participating in a mediation agrees that any information learned in the mediation will not be used outside of the mediation and more specifically in a court of law.

2-3). Rest assured that if a lawyer was tempted to behave badly, these attempts would be quickly identified and moderated by the mediators.

2-4). At Mediation Path we have a simple rule: we do not take on a case if we are not persuaded that we can help the parties. To do so we will interview directly each party without representation and also converse with the lawyers who will be representing a client during the mediation in order to evaluate each participant's motivation to settle. If we are not convinced there is enough commitment to attempt to reach an agreement on the part of ALL the parties involved, we will respectfully decline to assist. In other words, in mediation, each party is asked to give up a little of what they want in order to settle the case. If an attorney or a party fails to understand this and simply comes to the mediation demanding 100% of what they wish with no willingness to compromise, the chances of resolution severely decline. In that case, we will simply not mediate.

2-5). In the same vein, at Mediation Path, we believe it is part of the role of the mediators to make sure that:

2-5-1). The attorney assisting his/her client during a mediation session makes sure that his/her client fully understands how mediation works and what to expect at the mediation. The reason for this is quite simple: when a client represented by a lawyer arrives at a scheduled mediation with no understanding of what mediation is - it may impact the effectiveness of the mediation.

2-5-2). The attorney will be reminded by us that he/she must only accompany the mediation persons with settlement authority AND that he/she needs to bring the necessary key evidence to the mediation. As mediators, the last thing we want is having to cancel the mediation because the right parties are not in attendance AND if a case hinges on a particular issue having to delay or end the mediation without an agreement because the attorney either intentionally or unintentionally neglects to bring the evidence that would allow a settlement on this specific matter.

To conclude, motivation, good faith and preparedness are key to a smooth mediation. That said, will some parties who appeared to be motivated, acting in good faith, and prepared will try to trick the mediators to get what they want whether they are lawyers or not? They may. But remember the success of mediation relies more on the experience and the know-how of the mediators than on the bad or good behaviors of the parties. In the end, the mediators are in charge of the mediation not the parties and/or their lawyers.

At Mediation Path Silicon Valley, we are trained mediators available to discuss your mediation options with you. Call us if we can be of service to you and your family.