This Month's Topic:
Does the Presence of a Lawyer Help or Hurt the Mediation Process?*
How does the presence of lawyers affect the process of mediation? You might guess that when one or both sides bring an attorney to a mediation, the process would become more contentious and adversarial, with impasse more likely, than if the parties worked solely with a mediator.
That conventional wisdom is contradicted by new research by professors Jean Poitras of HEC Montréal; Arnaud Stimec of the Université de Nantes, France; and Jean Francois Roberge of the Université de Sherbrooke in Canada. In a study of workplace disputes handled by a professional mediator in Québec, Canada, mediations conducted with attorneys present were just as likely to settle as were those without attorneys present. In fact, 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. Overall the study found some evidence that lawyers, contrary to their reputation, may actually aid in getting resolution. However, where the rebuilding of a relationship is of primary importance rather than money, the findings suggest the relationship was less likely to improve if attorneys were present at the mediation.
The Take Away: A happy client brings you more business so make sure you ask your client what is important to him or her before going to mediation. If improving the relationship is the most important outcome for your client, you need to map out a strategy that takes you, the attorney, out of the center of the storm and be there just as support and to help negotiate the financial resolution. Coming on too strong can make the relationship blow up and no amount of money will make your client happy with the outcome or with you. If, on the other hand, your client just wants to be compensated, take a stronger role.
*Adapted from "Should You Bring Your Lawyer," first published in the Negotiation newsletter, April 2010. Resource: "The Negative Impact of Attorneys on Mediation Outcomes: A Myth or Reality?" by Jean Poitras, Arnaud Stimec, and Jean-Francois Roberge. Negotiation Journal, 2010.