Tuesday Tips: How an Attorney Helps in Mediation

Mediation is a great process for resolving disputes. I'm not neutral on the topic because I am also a mediator, and I have been promoting mediation for over 20 years.  It's a peaceful way to resolve cases and the parties usually come out with agreements they are satisfied with. 

One of the reasons why mediation can work is that the mediator is strictly neutral.  The mediator must avoid taking sides, but that also limits the amount of help a mediator can provide to a party in mediation.  One of the mediator's chief  roles is to keep the parties talking. The mediator is not there to suggest solutions.  Those come from the parties or their attorneys.

I have participated in mediations where there were attorneys for both parties, where neither party had an attorney and where only one party had an attorney.  Generally, the best results come where both parties have attorneys.  The most difficult cases are usually the ones where one party has an attorney and the other party does not.  In that situation, the represented side has advantages in knowledge and skill in negotiating (unless the attorney does a poor job).

How does an attorney help in mediation?

• The attorney can understand the issues and the law.  Sometimes, unrepresented parties want to argue about non-issues or may want to do something that is impossible to do.  An attorney can help a client understand what issues need to be addressed and what possible solutions are.  If a client wants to do something that can't be done, the attorney can present some alternatives.
• An attorney makes sure issues aren't overlooked.  A party may be unaware of some issues and they might not get discussed if there's no attorney on the case.
• Unlike a mediator, the attorney is not neutral.  An attorney can tell the party that something won't work or is a bad idea.  An attorney can suggest better ways to do things.
• An experienced attorney is generally an experienced negotiator.  (From  my perspective, an attorney-mediator is an even better mediator.)  Mediation is so ingrained in Family Law now, attorneys have to learn and practice negotiation skills all the time.  Having an experienced negotiator can lead to a smoother process and better results. Knowing when and how to bring up some issues can make a huge difference.

One of the smartest moves you can make is to hire an attorney before you go to mediation. If you are not yet represented and are facing mediation, do yourself a favor and find an experienced negotiator-attorney to help you. You will appreciate the help.