This week Colin Russ provides top tips in relation to counsels being involved in mediation. Colin is a Chambers and Legal 500 rated independent mediator with over 30 years of experience in commercial dispute resolution.
Mediation continues to evolve: the original concept was as a stripped-down process that could be undertaken by the parties with minimum input from lawyers. Whilst this remains an option, it is clear that the prospects of success are greatly enhanced by the parties’ solicitors being involved at the mediation.
So what of counsel? In recent years we have seen enthusiasm for involving counsel from some, and outright hostility from others.
Here are some considerations to look at:
- Will counsel’s role be limited to advising in advance of the mediation? Preparing a position statement? Attending the mediation itself? Drafting a settlement agreement?
- Given that mediation is not a trial and is at its heart a negotiation, what will counsel’s involvement add?
- Specifically, is this a situation where specialist advocacy skills are going to be helpful?
- If the aim is to help with risk assessment, is this outward-facing, directed at the other party; or also inward-facing, directed at one’s own client?
- What is counsel’s contribution to be: at an opening (plenary) meeting? In the private room sessions? In the negotiations? In any face-to-face lawyer only meetings?
- Crucially, what experience does counsel have of the mediation process and the required mind-set?
- What is the likely attitude of the other party / parties to the involvement of counsel in your team? Note of caution – springing it as a surprise on the day is extremely unlikely to get the process off to a good start!
- Is it justifiable in terms of the complexity and costs?
- What are the risks? Will it lead to an overly legalistic approach? Introduce unhelpful consideration of conflicting case law? Slow down the process?
- In what way is it felt that the involvement of counsel (whether fully or in a more limited way) will positively promote settlement?
My experience in recent years has been largely positive and whilst I am certainly not suggesting that counsel should be present in the majority of mediations, there is a case for involving counsel in the process in certain very specific circumstances.