I recently worked with a mediator who very strongly prefers to mediate without attorneys present - just with the disputing parties themselves. I found this fascinating....
This mediator was recommended to me by respected colleagues for this particular type of case in which I was legal counsel for one party. So, when I called the mediator's office to find out more about her, I was a bit surprised to hear that she doesn't usually (or ever!) mediate with the attorneys present. In a follow up call, the mediator explained that this preference stems from the litigious, confrontational and hostile behavior exhibited by attorneys in prior mediations and that, in her experience, the attorneys have basically stood in the way of productive settlement discussions. Her preference to mediate with only the parties themselves was so strong that I all but negotiated with her (convincing her that my own mediator background and collegial relationship with the other party's attorney would only assist the mediation process) to get her to agree to mediate this case.
She agreed to conduct the mediation with the attorneys present. And the mediation itself was ultimately successful thanks to her unique mediation style and methods of generating creative options to meet the parties' needs. As the attorneys in the case, we did the best we could not to get in the way of our respective clients' needs and desires in reaching an acceptable and mutually beneficial settlement. In retrospect, I am confident the mediator recognized that the attorneys were able to do more good than harm although I don't know if she has actually changed her general policy.
This experience caused me to reflect on my own practice and policies regarding attorneys' involvement in the cases I mediate. As it happens, I don't have a policy to include or not include attorneys in the mediation room and instead, I leave that decision to the parties themselves. This decision needs to be made before the mediation of course. It would not be a balanced mediation if one party shows up with legal counsel and the other party has no representative.
However, I do have a policy, and an enforced provision in my Mediation Agreements, that each mediating party must have his or her own independent attorney to review any settlement agreement and provide independent advice at some point in the process. This protects both parties, enhances the enforceability of their agreement and enforces the fact that I am not acting as either party's legal counsel, but am instead a neutral, unbiased mediator in the case. Yes, these goals could all be met by having the attorneys present in the mediation, but other goals of the parties aren't always met by having attorneys in the mediation itself (including reducing costs and maintaining a friendly relationship with the other party), particularly during multiple session mediations.
Nevertheless, when it comes to my own preference regarding attorneys in the mediation room, I have to admit that I have noticed more tension, more stubborn digging into positions and less freedom for playing around with creative options in the cases I have mediated where attorneys are in the mediation. This is not to say that all of that is coming from the attorneys, but the cases and clients themselves always seem much more contentious and positions and parties more aggressive and angry when attorneys have been hired to litigate a case and for one reason or another the case goes to mediation.
This is one reason I promote the idea of getting into mediation as early as possible (even before a lawsuit or divorce case has been filed) in order to minimize hostilities as well as expenses and start out with a collaborative mindset instead of a mind set for war. Of course, this is much more feasible in a family law/divorce case, but it's still an option in many civil cases as well.
