I write this item as a frustrated non-lawyer Mediator with many years experience of dealing in small commercial disputes that have been taken over by tactical lawyers. I would be very interested to hear responses and views to see if other non-lawyer Mediators and parties in disputes share my experience. Suffice to say speaking as a Hampshire mediator and part of the Solent and Wessex mediation panel my remarks are not applicable to every solicitor involved in mediation as from time to time good solicitors can add enormous value in certain disputes.
The first problem is communication directly with the parties. Solicitors pay no attention to the fundamental principle of mediation in that it is a completely confidential process and that whatever one party tells the Mediator is never transmitted to the other party without prior agreement. Some solicitors advise the parties not to deal with the Mediator direct and only communicate through them, this has inevitable negative consequences.
This might spoil the opportunity for the Mediator to establish a direct understanding of the party's position and build a rapport based on trust directly with them. If communication only goes via the solicitors that puts the solicitors in the position that the party should occupy and makes the mediation less likely to succeed.
It is an undeniable fact that it is essential for parties to have their own independent legal advice but surely it is even more important that parties are personally aware of their control over this Mediation opportunity to settle, as provided by the mediation process.
It is a problem in dealing with any Mediation where the parties are represented by solicitors that the costs of that legal representation can become an obstacle to settlement or even more important than either the dispute or the remedies and matters that parties want including in their compromise resolution.
On the Mediation day itself some solicitors appear to be determined to highjack proceedings and either launch a fishing expedition to discover information and weaknesses in the opposition's case and personal circumstances, or, use brinkmanship to almost "blackmail" a settlement from their opponents. They try to use a Mediator as a message carrier and do not allow true Mediation processes to take place. In the more extreme cases solicitors have drawn stumps and walked away when the party wanted to carry on with exploring settlement options.
Mediation is supposed to be a joint meeting of parties to hear each other, explore grievances, openly discuss complaints and solutions in front of an enabling independent Mediator, the third party neutral, not conduct a legal jousting melee.
CEDR Accredited Mediator
One of the reasons why parties can be reluctant to mediate is that they are put off by the idea of participating in a very formal structure. For some...