Barristers and Mediations. What do you think?

This old chestnut came back to haunt me recently in a complex multi-party mediation of an inheritance dispute.

We mediators know all too well that inheritance disputes are some of the most difficult cases to mediate. They are intensely personal. Joint sessions are almost always impossible. When the disputants are in the grip of powerful, sometimes uncontrollable emotions it is incumbent on their lawyers to support them and nurse them through the day. It is equally incumbent on the lawyers to allow the mediator to do his or her job.

The last thing everybody needs is a lawyer with an ego.

Full disclosure: I’m a barrister. But I flipped to the bar 6 years ago. For most of my career I was a solicitor, so I’ve been on both sides of the fence. Years ago I witnessed in plenary sessions the often tiresome addresses delivered by counsel, parroting their position statements with sonorous solemnity. In fairness it wasn’t entirely their fault. An understanding of the very different kind of advocacy needed in mediations was in its infancy. Barristers were doing what they were trained to do: fight their client’s corner. As hired guns they thought they were there to be seen to perform. In private session they sat at the head of the table, dominating the room and the direction of discussion. They carried their adversarial genes into mediations and sometimes made things worse.

These days things are completely different. The modern Bar has a far better understanding of the special requirements of client representation in mediations. I almost never come across a barrister who does not add value to the process. But occasionally it happens: on entering a private room I’m sucked through a wormhole, transported back to the 1990s and confronted by that relic: the pin-striped three piece suit. And all that it typically contains.

Communication; collaboration; co-operation. These are needed in spades in difficult mediations. If the disputants are too wrapped up in their own emotions then it is down to their representatives to step up and practice the Three Cs on their clients’ behalf. That includes the way in which they engage with the mediator, who is only as effective as he or she is allowed to be.

A few suggestions, for both solicitors and barristers:

  1. Don’t ignore the mediator’s pre-mediation emails and telephone calls. The mediator needs prior engagement, the better to understand your client’s priorities and pressures.

  2. Make sure that your mediation statement accurately foreshadows what you are going to table in the mediation. A novel proposal out of the blue in a long-standing dispute is rarely well received and wastes precious time.

  3. If the mediation agreement contains a confidentiality declaration intended for all present at the mediation to sign, please don’t refuse to sign it just because you’re covered by your professional conduct rules. Its signing – by all present – is a helpful little ritual and signifies buy-in to the confidential, collaborative atmosphere we mediators strive to create. A refusal to sign sends a message that you are above everyone else. You are not. The most important person in the room is your client.

  4. Think about how you set up your room to make it an open and welcoming environment for the mediator and others. Don’t hog the end of the table right next to the door, spreading your files and your IT far and wide so that the mediator has to squeeze past everyone to the other side of the room.

  5. Don’t dominate the conversation. The mediator wants to hear your client speak; he/she does not want everything filtered through the lawyer’s mouth. It is vitally important for the mediator to be allowed to build a relationship of trust and confidence – quickly – with the disputants and to gain a clear understanding of their wishes and concerns. If you close down the conversation by controlling the dialogue you are preventing the mediator from doing his/her job effectively and you are doing your client a disservice.

  6. Respect the mediator’s experience. He or she probably has far more experience of mediations than you and, uniquely, has access to all parties and all points of view.

  7. Remember that you will get much more from the mediator if you are friendly, a good communicator and you leave your ego at home. Be sure to encourage open and inclusive conversation. Buttoned up, closed down formality in your private room is not a good way to mediate. I like to enjoy my encounters with all the diverse people I meet in mediations. I like to spend a little time talking to your client about things other than the dispute, to get to know them. Where appropriate I like to lighten the mood with humour. I don’t enjoy having lawyers do all the talking.

  8. Don’t turn your room into a bunker. You are there to engage – with the mediator and with the other parties’ lawyers. Particularly in multi-party mediations I’m more than happy to facilitate you holding discussions with other parties’ lawyers, with or without me present. It keeps things moving and builds working relationships.

  9. Manage your client’s expectations. This is a negotiation which by definition involves compromise if it is to be successful.

  10. Don’t table unrealistic proposals. It will alienate the other parties.

I am direct and straightforward in my communications, but I am also friendly and I listen very carefully. Anything said to me in private session is said with my guarantee that it stays in your room unless you authorise me to share it. You can trust my professionalism so please let me do my job. Your client is paying for it. If someone is behaving in a way which I consider to be detrimental to the process then I’m certainly not afraid to challenge them. I expect everybody to act in accordance with the spirit of the process.

Finally, a word of advice for solicitors when choosing counsel to attend mediation. Choose carefully. Choose an excellent communicator. Choose someone with a sense of humour. It makes everything so much easier.

It would be great to get some feedback on your experiences, as fellow mediators, barristers and solicitors. Feel free to post your comments.

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