How Lawyers Affect Mediation

One of the recurring themes in mediation is, whether lawyers should attend or not attend the medition. More generelly speaking: what role do lawyers have to play in mediation? One often hears that that when one or both sides bring their lawyer to the mediation, the mediation is slowed down, becomes more contentious and adversarial, and more likely to fail compared to a situation where they parties worked solely with a mediator.The Program on Negotiation (PON) at Harvard Law School reports today that new research by professors Jean Poitras of HEC Montréal; Arnaud Stimec of the Université de Nantes and Jean Francois Roberge of the Université de Sherbrooke in Canada shows that this is not the case. Here is PON’s summary of their findings:

“Mediations conducted with attorneys present were just as likely to be settled as were those without attorneys present. More good news: the presence of attorneys didn’t significantly slow down the mediation process, affect how fair parties viewed the process to be, or alter how satisfied they were with the agreement.

A couple of difference did emerge. First, when attorneys were present, parties viewed their mediators to be somewhat less useful. Second, parties were less likely to reconcile with each other when attorneys were present. Overall, though, the study finds some evidence that lawyers, contrary to their reputation, do not obstruct agreement in mediation.”

See, I told you so. Lawyers aren’t that bad after all.

 

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6 thoughts on “How Lawyers Affect Mediation

  1. “Mediations conducted with attorneys present were just as likely to be settled as were those without attorneys present. …….so therefore, what is the point of having attorneys present? It would save clients money and allow busy attorneys to be getting on with doing other things. I guess it’s an unfortunate reflection on attorneys when they seem to have to justify their presence in mediation by arguing that they ‘don’t have a negative effect’ rather than that they ‘do have a positive effect’. More and more the lack of need for the presence of a lawyer in the resolution of many types of dispute are becoming evident.

    • Thanks for your comment! The question “do lawyers have a positive effect on mediation outcomes” is difficult to tackle methodologically. How do you measure the impact, positive or otherwise, of the various factors on the outcome of a mediation? The post received a fair amount of comments within the CEDR group at Linkedin. One comment pointed out, accurately, the limitations of the study. On the other hand, there appears to be some anecdotal evidence that some mediations only happen because lawyers suggest mediation as an alternative.

  2. Hi Peter, I have not yet had the chance to look at the study you cite above but drawing on some of the findings in my recent book, “Lawyers and Mediation” by Springer, there is a wealth of empirical evidence across the globe out there on the impact that lawyers have on mediation. The evidence is very mixed but the following can be said: on the issue of control, there are a number of studies suggesting that lawyers do not view client control as that important within mediation and that they are apt to take over the process and outcome deliberations. What this may mean is the weakening of the client’s central role in mediation and missed opportunities for integrative, interest-based bargaining, as the process becomes one in which mediators essentially assist lawyers to negotiate more effectively. The diminished place for clients in this model of mediation may negatively affect perceptions of procedural justice, which are instead positively influenced by disputants’ perceptions of having ‘voice’. This is also important because some research has found lawyers often commonly seeking to use mediation as a way to pursue traditional legal (monetary) aims, when clients often sought, other non-monetary aims such as apologies, explanations and the opportunity to vent in front of the other party. There is also evidence from some studies of lawyers ramping up the adversarial nature of the process and using mediation as ‘fishing expeditions’. But on the other hand there is some evidence of the worth of lawyer advocates to protect parties from ‘settlement junkie’ mediators, and ensure that power imbalances between parties are minimised. Lawyers are often important to provide a safetly net for less empowered clients and ensure fairness of agreements reached and help clients find their voice by better articulating their positions and interests. Mediators often also find it useful to work with lawyers in creating opportunities for settlement.

  3. In the summary, we read “Second, parties were less likely to reconcile with each other when attorneys were present. . . . the study finds some evidence that lawyers . . . do not obstruct agreement in mediation.”

    I’m no lawyer but I am used to evidence. Am I wrong to see a contradiction in the two propositions? Or is it being said that attorneys do not cause the percieved inhibition of settlement which is a mere coincidence?

  4. Hi Geoffrey, I suspect that what this means is that the presence of lawyers can get in the way of party reconcilation by limiting discussion of non-legal issues and client participation and dialogue but such lawyer presence does not inhibit the production of settlements as such. Indeed the lawyers’ focus on outcomes and bargaining in the shadow of the law may help get to agreements quicker but without the relational healing power of mediation being realised

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