Thursday, December 14th, 2017

The Benefits of Having an Attorney at Pre-Litigation Mediation

November 22, 2013 by  
Filed under Newsletters

As we know, many disputes can be resolved through mediation before a lawsuit is filed. Mediation is a non-adversarial setting to attempt to resolve a dispute before entering into litigation. Disputes mediated prior to litigation save the time, expense and anxiety of a lawsuit. Parties interested in preserving business or other relationships use pre-litigation mediation to settle a disagreement while preserving the on-going relationship. Even if mediation fails to produce an agreement, the opportunity to discuss the dispute in a facilitative environment can provide greater insight and understanding to both sides.

Using Attorneys in Pre-Litigation Mediation is Beneficial

However some people mistakenly believe that attorneys are not, or should not be, involved in the pre-litigation mediation.  There are myriad reasons why it is often beneficial for parties to be represented by counsel and have counsel either present at the mediation session or available for consultation by telephone.  In addition to their knowledge of the law, attorneys bring a variety of skills and expertise to the mediation.

While some may try to avoid the expense of having an attorney at the mediation session, depending on the size of the dispute, such thinking can be short-sighted.  Attorney participation in pre-litigation mediation is still substantially less expensive than going forward with filing a lawsuit, which will include the expenses of preparing and filing the actual case, written discovery, depositions, pre-trial motions, expert fees and tremendous attorney time preparing for trial.

Using an Attorney in Mediation

When attorneys have a role in mediation, they can assure the parties use all available information and consider the full spectrum of possible settlement offers for the best results for their clients.  An attorney will also present a cooperative speaker for nervous clients. As an advocate familiar with the circumstances, an attorney can provide a welcome additional perspective attuned to client desires.  Attorneys can advise their clients on the applicable law and how their view of the facts will apply, versus how the law would apply to the other side’s view of the facts.  Involving a supportive attorney in mediation will ensure the legal consequences of any settlement are well considered.

Some may believe that using an attorney in mediation may increase conflict, but in our experience, this is not generally the case.  Remember, attorneys are also counselors – helping clients make the best decision taking not just legal issues, but business and perhaps emotional issues into account as well; encouraging agreement while working to preserve the needs of their client.

Further, parties often regard mediation more seriously when attorneys are involved, and are better able to make a final decision with the help of their attorney. The attorney can explain the consequences of a proposed agreement, thus parties are more informed and likely to feel comfortable with their decision.

In addition, when either side in a dispute plans to bring their attorney to the mediation session, the other side should also consider bringing their attorney, or having their attorney available, so as to avoid imbalance.

Attorneys Assist in Successful Mediations

Of course, an attorney involved in a mediated dispute should support the mediation process and most, if not all, do, for most cases.  A supportive attorney reduces hesitations to agree. Attorneys with a positive attitude toward mediation greatly assist their clients in understanding the information presented during the process. They explain the ramifications of a resolution to clients and facilitate settlement satisfaction. Indeed, positive attorney mediation participation includes a range of activities, from advising clients pre-negotiation through the mediation session to post-session negotiations where necessary. Parties can feel comfortable knowing that their rights are being guarded throughout the process with their attorneys at their sides.

If you are represented by legal counsel, speak with your attorney about the benefits of mediation and alternative dispute resolution. Contact our office for more information about the potential for mediation to resolve your dispute.

Kevin Coleman is a certified mediator who performs mediation services throughout the San Francisco Bay Area, including San Francisco, Marin County, Alameda, Contra Costa, Sonoma, outlying counties and throughout the state. 

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