Lawyers And Mediation: The Impact Of Legal Logic In Mediation
If the letter of the law has to some extent abandoned mediation to its own internal logic, then the logic of the law seems to have penetrated into mediation via the peculiar relationship that lawyers have to it, meaning that the original sense of mediation as a space in which parties would act for themselves for their own interests with the aim of reaching creative solutions has somewhat been lost. Indeed, Clark writes that “the interaction of lawyers in the mediation process, both acting as mediators and as party representatives, may have diluted the purity of certain fundamental aspects of mediation”. From one perspective, this may be negative as it robs from mediation many of the non-legal aspects that made it attractive in the first place; from another, it may be positive as a way to insert the procedural equality of the legal process into mediated settlements, especially where the mediator himself is a lawyer applying legal principles to the process. However, it may also create new situations that exacerbate the unequal bargaining power between parties, wherein one legally represented party has more influence than the other that is not represented.
Firstly, the parties themselves seem to be approaching mediation as if it were an extension of the legal drama of the courtroom. It is telling indeed that, in Italy’s recent compulsory mediation scheme, 84% of applicants and 85% of respondents went into the mediation legally represented: this may be due to the popular conception that, especially where mediation is compulsory, it serves merely as a precursor to adversarial court proceedings that serve simply as a necessary, if wearisome, first step towards litigation. This could mean that parties in mediation are not there whole-heartedly and will not put their whole effort in good faith into finding a settlement. There is also the fact that some parties do not seek the peaceful settlement of their dispute, but would rather obtain a binding legal precedent on a matter in issue, either because they view it as an important principle or because they want to prevent further claims being brought against them on the same basis. Such parties would have no time for mediation, whether on a voluntary or on a mandatory basis. Given these considerations, it is not surprising that in the Italian scheme, 64.3% of defendants failed to arrive at their mediation hearing despite facing potential penalties for non-attendance, and that only 46.4% of cases managed to settle. It is therefore suggested that the public appetite for a litigious solution led to neglect of mediation and reliance on legal representation even within the scheme.
Lawyers have also been slow to warm to mediation. Indeed, in the above- mentioned Italian example, their compulsory mediation scheme was always far less popular with lawyers than it was with the public. Petsche notes how the lucrative income from dispute resolution methods such as arbitration, totalling $2-4 billion per year in the international arbitration industry alone, may dissuade professional lawyers from advising or pursuing the cheaper and quicker form of dispute resolution that is mediation, given that they stand to earn far less from that than from arbitration. This is true whether they are acting as legal representatives for the parties or as the adjudicator in the dispute: mediators earn less than arbitrators, and the fees available for a series of short mediation sessions are far lower than those available for a protracted case in court or at an arbitral tribunal. Although the above should be read in light of the ethical duty on lawyers to pursue their client’s best interests no matter what the cost for themselves, it remains true that a professional lawyer would prefer to earn a larger fee for a court hearing than a smaller fee for mediation and, failing that, that s/he would advise his/her client to take legal representation into mediation with them, partly (potentially) so that s/he may earn a fee from that work and partly out of the sincere belief that this is the best way to ensure that their client gains the best result from the process.
This latter point brings the flow of the argument to a consideration of the potential inequality of arms that can arise from involving lawyers in mediation. The point is, quite simply, that a party undertaking mediation unrepresented may be at a disadvantage against a party that has come to mediation with legal representation. Given that counsel representing this latter party would be obliged to “promote and protect fearlessly and by all proper and lawful means the lay client’s best interests”, an adversarial element would be introduced into the mediation, with no necessary safeguards for the former party acting analogously as litigant-in-person. The unrepresented party would be in a position of unequal bargaining power in that s/he would not able to assess the validity of any offer put to them by counsel withouthaving his/her own legal representation, who would be able to advise on whether a better offer were available or whether s/he would seek to gain more from going into court. It is also possible that an unrepresented party may feel intimidated by seeing counsel speaking for the other side and might thus feel in a position of weakness. Furthermore, in mediation, there is no guarantee that the mediator will seek to accommodate the needs of the unrepresented party in the manner that a judge might and, given the fact that anything said in mediation is without prejudice, there is scant procedural guarantee that an unjust situation in or result from mediation could be appealed. Taking these considerations as a whole, it is easy to see that an unrepresented party, faced by legal representation and persuasive rhetoric, may feel intimidated into accepting a settlement inappropriate for meeting their interests; and, given that one of the purposes of mediation is to save costs and that one of its advantages is that it is a cheaper means of dispute resolution than trial, often because legal fees can be avoided, it is foreseeable that the unrepresented party in the above scenario is not just someone who won’t get legal representation, but someone who cannot. In this particular instance, mediation could represent a threat to equal justice par excellence.
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Bibliography
David Comes, ‘Publication Review: Lawyers and Mediation’, [2013] Arbitration
Bryan Clark, Lawyers and Mediation (Springer, 2012)
Andrew Colvin, ‘Mediation in Italy: check: implications in Europe?’, [2013]
The Bar Council, ‘Alternative Dispute Resolution Committee’, [2013] [online] available at < http://www.barcouncil.org.uk/about-us/constitution-and-structure/committees/alternative- dispute-resolution-%28adr%29-committee/ >
Code of Conduct of the Bar of England and Wales
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