Mediation is often the last opportunity for parties to resolve their differences and avoid a lengthy and expensive battle in court or arbitration. It is the last opportunity to exercise control over the outcome by working with a mediator towards a mutually acceptable agreement. Lawyers can be of tremendous benefit in helping their clients exercise control over the outcome and in resolving the conflict amicably.
Attorneys know from experience the benefits of mediation and the dangers/risks of trial and arbitration. However, an attorney is retained by clients not as a mediator, but rather as an advocate expected to persuasively argue the strengths of the case and minimize the weaknesses in the hopes of getting the best possible outcome for the client. An attorney as an advocate would be derelict in his/her responsibilities if he/she didn't make the best case possible for the client.
Although the client expects their attorney to act as an advocate, they also require legal counseling and advice on how best to proceed with their case. Here lies the most difficult part of being an attorney. Attorneys must be both an advocate and a counselor for their client at the same time. And perhaps most difficult, attorneys must know the appropriate time to wear each respective hat.
Mediation is one of those moments where the attorney must be both advocate and counselor. If he/she fails to be both, ultimately the client loses, and will be dissatisfied with the representation received. The client demands advocacy at mediation to help achieve the best result and counseling so as to know when to compromise. It is a balance that must be achieved for mediation to be successful and satisfactory for all the parties.
Attorneys thus play an important and crucial role in mediation. Failing to act as a counselor dooms the mediation to failure. Bottom line -- the attorney has the influence and the power to make mediation successful. The client trusts their attorney more than anyone else in the room, including the neutral mediator. They will look to their attorney as a counselor for guidance and direction.
A good mediator recognizes the powerful influence of an attorney, knowing that the case will not settle unless the attorney functions both as advocate and counselor. Attorneys familiar with the litigation process should do everything within their power to assist the client in avoiding the uncertainties of trial/arbitration. Compromise for the benefit of resolution is usually more economically beneficial. Such a result is more difficult to achieve, but more satisfying and beneficial to the parties.
The mediation process has a much better chance of success if the attorney(s) recognize the dual role and begin the process well before walking into the mediator's office. The job of being an advocate and a counselor should start the day the client walks into his attorney's office, and hopefully end at the mediator's office with a mutual agreement.
Submitted by David Bark, Esq., mediator for the Real Estate Mediation Center