Ninety five percent of cases settle prior to trial anyway, and lawyers are good negotiators, so what value does a mediator add to a case? Of course mediation benefits the client, in many ways. In addition to being cost effective, mediation helps to preserve relationships. It de-escalates conflict and brings communication and closure, rather than escalation and stonewalling that protracted adversarial proceedings can entail.
But mediation helps the lawyer, as well. Primarily, the presence of a neutral mediator keeps the attorney out of the middle, where negotiations are concerned. When a mediator is involved in the case, it is easier for a lawyer in negotiations to maintain her clear role as advocate rather than confusing that role by acting as a neutral go-between. An attorney acting as a negotiatior may be tempted to adopt a more neutral position. Or worse, if an attorney who adopts a “Devil’s advocate” postion of arguing in favor of settlement, the client may question that attorney’s loyalty. When a mediator is involved, the neutrality of the mediator enables the attorney to advocate on behalf of settlement without sacrificing the advocate’s role. If a client’s attorney feels the client’s position is untenable and informs the client of that, the neutral is also present to provide support (or a “reality check”) for the position of advocate.
- Mediation among parties with opposing viewpoints by the attorney for one of them may compromise zealous advocacy and skirt close to the grey area of dual representation.
- Parties may not feel free to express fully their viewpoints to an attorney for one side or when there is an imbalance of power.
- Facilitation of communication and negotiation as a mediator involves a different skill set from advocacy. Mediation, particularly a complex mediation involving multiple parties with differing interests, may place the attorney into a role for which she or he may not be equipped.
The paradigm of the neutral mediator is fundamentally different from the paradigm of the advocate attorney. The attorney is properly focused on legal remedies and what is realistically available through the law. The mediator is less focused on this. While it may be significant, the mediator is more interested in finding workable solutions that everyone can live with. In other words, the mediator has a very different point of view and will work the conflict from a different angle. Having a mediator act as the neutral, so that the attorney is free to focus on advocacy, prevents actual or apparent conflicts and confusion about who is wearing what hat.
Because of the many advantages of mediation for clients, mediation also results in happier clients. And happier clients, who know their attorney is working hard on their behalf, is the real bottom line of why an attorney should want a mediator in the case.