Do I Need A Lawyer During Mediation: Advantages and Disadvantages
By: Mr. Glen Evans, Mediator & Arbitrator
Mediation is an alternative dispute resolution method that offers parties the opportunity to resolve conflicts outside of a courtroom, with the guidance of a neutral third party, known as a Mediator. While some individuals prefer to navigate mediation without legal representation, others opt to involve a lawyer.
Many of our clients ask us:
“Do I need to have a lawyer with me during mediation?”
In this post we discuss the advantages and disadvantages of using a lawyer during mediation.
Advantages of Using a Lawyer During Mediation
1. Legal Expertise and Advice:
One of the most significant advantages of involving a lawyer during mediation is their legal expertise. A lawyer can provide invaluable knowledge of laws, regulations, and precedents that may be relevant to the dispute at hand. This expertise helps ensure that the mediated outcome aligns with the parties’ legal rights and obligations.
2. Objective Assessment:
Lawyers can offer an unbiased and objective assessment of the strengths and weaknesses of a case. Through their experience, legal professionals can identify potential risks and pitfalls that parties may overlook. Having a clear understanding of the potential outcomes can empower parties to make more informed decisions during the mediation process.
3. Negotiation Skills:
Lawyers routinely engage in negotiations and are equipped with negotiation skills that can prove beneficial during mediation. They can help clients articulate their positions effectively, advocate for their interests, and explore potential compromises. Skilled lawyers can also help bridge the communication gap between parties and facilitate constructive dialogue.
4. Emotional Support and Guidance:
Mediation can be a highly emotional process, especially when dealing with intense conflicts. Lawyers can provide emotional support and guidance to clients during this challenging time. Their presence can help relieve stress and anxiety, enabling parties to better focus their energy on problem-solving and finding mutually agreeable solutions.
Disadvantages of Using a Lawyer during Mediation
1. Much Higher Cost:
Engaging a lawyer for mediation adds a significant additional expense to the process. Legal representation can be extremely costly, depending on the lawyer’s hourly rate and the complexity of the case. Parties must carefully assess their financial situation and weigh the potential benefits against the increased costs before involving a lawyer for the entire mediation process itself.
2. Potential for Protracted Process:
The presence of lawyers in mediation can sometimes lead to lengthy discussions and interactions, particularly if both parties are heavily reliant on legal advice. This may slow down the overall progress of mediation and prolong the resolution process. Therefore, the use of lawyers can inadvertently hinder the efficient and expeditious resolution of disputes.
3. Imbalance in Power Dynamics:
When only one party brings legal representation to mediation, a power imbalance may arise. The perceived advantage of having legal counsel can make the unrepresented party feel disadvantaged or pressured. This imbalance can potentially hinder the goal of mediation, which aims for a collaborative and balanced resolution.
4. Adversarial Approach:
While lawyers can facilitate negotiations, their training can sometimes lead to an adversarial approach. Lawyers may inadvertently encourage parties to dig deeper into their positions, strengthening the adversarial nature of the dispute. This approach may hinder the development of mutually beneficial solutions that are emphasized in mediation.
How To Decide
Deciding whether to engage a lawyer during mediation is a subjective choice that depends on various factors, including the complexity of the dispute and the parties’ comfort level. While involving lawyers during mediation offers numerous advantages such as legal expertise, objectivity, negotiation skills, and emotional support, the potential disadvantages of increased costs, protracted discussions, power imbalances, and adversarial approaches should be considered.
Sometimes the best approach may be the “third option” where you have your lawyer “standing by” to answer your questions and provide you advice on an “as needed” basis, instead of having them present, (and billing you), during the entire mediation process.
Furthermore, even if you choose to proceed through mediation without a lawyer physically present, you will still need to seek “independent legal advice” at the very end of the process, to ensure that you fully understand the final agreement(s) that you have reached, and that they are fair, balanced, and in your best interests.
Ultimately, the decision should be made after careful evaluation of the specific situation and the needs of all the parties involved.
Our professional and highly experienced mediators are happy to answer whatever questions you have about the process and, if you like, we can also provide you with a list of competent and helpful lawyers that we have successfully worked with in the past.
Contact us today for a free, no-obligation, initial consultation.