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Thursday, April 7, 2016

I've hired a Lawyer, do I need a Mediator too?

In response to our recent article, I'm in Mediation, do I need a Lawyer too?, mediator Stephen G. Anderson asked on twitter:

We though this was a great question, so here you go Stephen:

I've hired a Lawyer, do I need a Mediator too?

Even though many mediators are lawyers, mediators perform a very different service than lawyers.  One of the first things I tell my mediation clients is that, although I have a base of legal knowledge to draw from when assisting them, I am not acting as their lawyer when I am mediating.  But if you already have a lawyer, would you want a mediator too?  If you want to resolve your dispute privately, with less cost, and more control, then the answer is quite simply: YES.

Because the mediator role is different than the role that your lawyer serves there are numerous benefits to hiring a mediator to work with you and your lawyers, and some risks as well.  Below is a summary of the pros and cons:

Benefits of Hiring a Mediator to Assist with Your Case:

One Alternative to Mediation
  • Privacy - Mediation occurs in a private and confidential setting, instead of a public courthouse.  Privacy encourages people to speak openly and honestly, and confidentiality encourages people to share information and acknowledge each other, rather than posture.  
  • A Resource for Additional Information - While a mediator cannot provide legal advice, they can provide information that may be relevant to your case.  Depending on the mediator you choose they may have an expertise that is different than your attorney.  For example, if you work with a child development specialist to mediate your parenting plan, they may be able to provide information about how children react to parenting plans at different ages.  This is information that your lawyer may not have training in.  
  • A Resource for Neutral Information - Even when a mediator is providing legal information that you could each individually get from your lawyers, that information may be received better by both sides when presented in a neutral way.  It may also be more efficient for both parties to hear the information from one source, rather than pay two attorneys to tell them the same thing separately.
  • Improving Communication - Mediation focuses on better communication of interests and goals to assist parties in understanding each other and thereby reaching resolution of their dispute.  When attorneys negotiate for clients (or argue in court), the clients aren't improving their own communication.  If there is an ongoing relationship between the parties, then this conflict is an opportunity to find communication techniques that can assist the parties in resolving future conflicts as well.  For co-parents this could mean years of effective co-parenting instead of the alternative of calling attorneys every time a new conflict arises, which only benefits the attorneys.
  • A Forum for Being Heard - While many people think going to court is an opportunity to tell their side of the story, mediation is actually a much better forum for both parties to have this chance.  Very few court cases actually make it to trial, and even when they do, testimony is limited by evidence rules, practicality and time.  Mediation, on the other hand, is a forum that encourages both sides to explain what they feel is relevant, even if a court wouldn't agree.
  • Increased Control - In mediation, each party has a say in the process and the outcome.  Because mediation is voluntary, parties can choose what type of process they want and they control the timeline.  In addition, because a mediator doesn't make a decision like a judge does, resolution requires that both parties agree, giving them full control over the outcome.  
  • Reduced Cost - Mediation typically costs less financially and emotionally than litigation.  If the parties meet with the mediator without attorneys present for the meetings then that time is spent with one professional instead of two or three, which is cheaper.  However, even when parties attend mediation with their lawyers, the cost is usually less than court.  The cost is less because the parties control the process and the timeline and there is no wasted time waiting in a busy courtroom for a hearing.  In addition, less time is spent posturing in positional negotiation when both parties are committed to finding resolution.  
  • Another Perspective - Every professional has different levels of experience, and your mediator may think of an option or solution that you, the other person and the attorneys all missed.

Risks of Hiring a Mediator:

  • One Step Forward, Two Steps Back - If you reach agreements in a mediation meeting and then your lawyer gives you advice that changes your mind that could destroy the progress you made in mediation and end up costing more.
  • Possible Wasted Time & Cost - If you work with a mediator and fail to reach agreements, you may feel that the process was a waste of time and you're back at square one, having now spent some of your funds on a mediator.  
  • Another Perspective - While this can also be a benefit, sometimes there are too many cooks in the kitchen to get things done.
  • Lack of Court Protections - The Court rules can sometimes provide protection for clients that a mediation doesn't provide.  For example, temporary agreements in a mediation are not enforceable in the way that temporary court orders are.

Minimizing the Risks:

Despite these risks, at Skylark Law & Mediation PC, we typically recommend that our clients try mediation first.  Even though there are risks, all of these risks can be minimized or eliminated if you know about them ahead of time.

  • One Step Forward, Two Steps Back: You can minimize this risk by working with a mediation-friendly lawyer from the beginning of your case and getting legal information and advice before you reach agreements.  Then you will never feel uninformed. 
  • Possible Wasted Time & Cost - Participating in mediation in good faith will often lead to improved communication, even if a full resolution isn't reached.  Therefore, even when mediation fails it often shortens the time parties take to reach resolution through other avenues, ultimately saving them time and money in the long run.  However, with any expense there is a risk that it won't work.  To minimize this risk ask good questions at your initial meeting to figure out if the process is really right for you.  If both parties are entering the mediation informed about how it works, it is very unlikely to be a waste of time or money.
  • Another Perspective - You can minimize this risk by not trying to repeat every conversation with your lawyer and your mediator.  Use each for their particular expertise.  
  • Lack of Court Protections - Even if yours is a case that requires some court protections, it is possible to participate in mediation after starting the court process. Discuss with your lawyer whether there are certain court protections that are necessary to protect your interests.  For example, temporary agreements reached in mediation can be entered as temporary orders in court if both parties agree.  When mediators and mediation-friendly attorneys work together, clients can often get the advantages of both the court and the mediation processes.

To ensure that you hire a lawyer and a mediator who will help you minimize the risks and maximize the benefits of a mediation, read our previous articles: What Questions Should You Ask Before Hiring an Attorney: a Mediator's Perspective and What Questions Should You Ask Before Hiring a Divorce Mediator?.

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