By Steven G. Mehta
Recently I saw an article that addressed the issue of what effect attorneys have on the mediation process. Interestingly, the article discussed the claim that many mediators view attorneys as having a negative impact on the medition. I do not necessarily share that view and believe that it might only apply to consumer mediations as opposed to litigated mediations.
In my view, many attorneys often help the the mediation process by reinforcing the statements made by the mediator. They remain in the room when the mediator leaves and continue to reinforce the process. There are some occasions where an attorney may not want to settle the case. Generally, however, it is not because they simply want to try the case, but instead it is because of a genuine belief that the case is stronger than what is being reflected in the mediation.
In addition, attorneys often help the process by adjusting the expectations before the parties arrive in mediation. To reflect the other view, however, there are occasions when the attorney has inflated the expectations — but usually it is not the attorney inflating expectations; it is the client who had the extreme expectations from the beginning.
On several occasions, the attorney can act as a buffer for information that the client doesn’t want to hear. It can allow the attorney to become an extra level of filter for extremely damaging information that might be difficult for the client to understand.
From an anecdotal perspective, attorneys are generally more helpful to the mediation than not.
The following is a summary of the findings of a recent study related to the impact of attorneys in mediation called The Negative Impact of Attorneys on Mediation Outcomes: A Myth or a Reality? Interestingly, the study finds that the fairness of the process and the usefulness of the mediator is diminished by the attorney’s presence. I believe that this study may be flawed in that it is not clear whether the attorney and mediator are collaborating as partners or as opponents. I find that by making the attorney a partner in the negotiation process and asking them to help you with the clients can be more effective in creating a fair process for the client. Moreover, rather than treating the attorney as an adversary that is not helping the process, I find that making them allies makes the attorneys more collaborative and makes the parties more involved in the process — thus allowing the parties to feel that the process is fair and that the mediation is useful.
|Variable||Mediation without Attorneys||Mediation with Attorneys||Significance Level|
|Initial conflict level||3.42||3.25||0.271|
|Time required to reach an agreement||147.8 minutes||177.5 minutes||0.100|
|Fairness of the process||5.44||5.10||0.155|
|Satisfaction with the agreement||4.72||4.18||0.175|
|Confidence in the agreement||5.36||4.98||0.126|
|Reconciliation of the parties||3.79||2.68||0.002*|