Mediation Representation
| Author | Stephen Walker/David Smith |
| Pages | 161-182 |
Representation
10.1 Introduction
In this chapter, we discuss the role and attributes of someone who accompanies a client to assist them at a mediation, i.e. a mediation representative or advocate. This is a very contested issue in the mediation world.
10.2 Can clients represent themselves?
It is not a truth universally acknowledged that clients need representation at all. Why cannot clients represent themselves? If they do, they save money. They may also think that they will be able to negotiate their own deal in a more commercial and less legalistic way. If proceedings have not started, this can be a good way forward. A lot depends on the client’s experience in negotiation, litigation and mediation. Some clients, for example insurers, are very experienced in all three areas. Others may have never been involved in a serious dispute before.
If a dispute is in the early stages, there is no reason why self-confident clients cannot represent themselves at a civil or commercial mediation. After all, many clients in commercial disputes spend a good part of their business lives negotiating deals and that, in essence, is what mediation is about. Representing yourself at mediation is far less intimidating than representing yourself at court, and an increasing number of people do that. In the end, it is for clients to decide how they want to be represented. For many clients, a mediation will be a unique experience – they will never have been there before, and they may never go there again. Usually, however, clients want some sort of legal representation. This is especially true if legal proceedings have started.
10.2.1 Sending the client alone
Sometimes, lawyers send clients without representation and unprepared. This is usually to keep costs down. It also frequently masks a belief that the mediation will not work and so there is no point in incurring fees for
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clients when the matter will inevitably proceed to trial. To be fair, clients often take the same view and tell the solicitor not to attend. However, even if the solicitor is not attending, they should make sure that their client is fully prepared. In particular, they should also consider how a settlement agreement is to be drafted. The client may assume that the mediator will provide some of the advice and services of their solicitor and so they can save money in this way. This is a dangerous position to adopt. A mediator will often be prepared to give guidance in this area, but it should be remembered that they will often not be aware of every aspect of the case and their suggestions should be considered from this viewpoint.
Essential preparation for the client
Solicitors must take the client through the steps discussed in more detail in Chapter 7, paras 7.9–7.11, namely:
• discussing what will happen at the mediation;
• considering a mediation strategy and looking at the possible outcomes;
• considering what details might need to be worked out for a settlement to work. Preparing a draft order or settlement agreement will also be helpful and reduces the chances of problems later.
If the solicitor does not intend to be at the mediation, even if some other representative will be there, they should be aware that their client may need to contact them during the day. They must make sure they are contactable, either at the office or on their mobile telephone number.
10.3 Who should represent the client?
10.3.1 Who should attend to make the deal?
At civil and commercial mediations, it is usual for someone from the parties’ legal team to be present. This can be:
• a trainee who knows nothing about the case;
• the partner who has been in overall charge of the case, but does not know the detail;
• the fee earner actually handling the case, either alone or sometimes with the partner for whom they work, who attends the mediation in order to look after the client;
together with counsel, although increasingly counsel attend without anyone from the solicitors.
10.3.2 Five key requirements for a representative
The five requirements for a representative are that they:
1. know about the case/dispute;
2. know the outcome of the pre-mediation analysis;
3. enjoy, or can quickly obtain, the confidence of the client, which is vital. Being the client at a mediation can be a stressful and lonely experience – they must make important decisions under time pressure, and will want reassurance that they are not overlooking a point, selling themselves short, miscalculating their chances of doing better at trial or simply being bamboozled by the mediator and the other side. This is where the representative comes in;
4. have the authority to sign settlement documents, usually a Tomlin order, on behalf of the firm and the client;
5. have the authority to negotiate on behalf of the firm on costs. During the mediation the representative may need to negotiate with insurers, funders, their own client or counsel’s clerk – as well as the other side. Difficulties often arise when a junior lawyer has been sent, perhaps with counsel, and does not have either the authority or experience to negotiate costs. They then have to try to contact the partner, who is rarely available on demand. The need to have this authority will increase as damages-based agreements (DBAs) and more complex funding arrangements become more common.
10.3.3 Do you need to instruct counsel to attend?
There is a well-developed school of thought that says that barristers are not needed at mediations because they are a barrier to settlement. There is no doubt that some barristers find it difficult to adapt to mediation and continue to treat it as litigation by other means.
Now that many more barristers have trained as mediators, this attitude is less prevalent, but it is still a problem. The idea that mediation is a contest at which you have to prove that you are right, and the other side are wrong can become ingrained in some barristers. It is worth bearing in mind that the barrister that you might want to settle pleadings or to argue the case at a trial may not be the same as the barrister you might want at a mediation.
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10.3.4 Value of barristers
Barristers have a useful role in a mediation. For example, barristers are able to:
• provide a degree of objectivity and detachment: something solicitors cannot always achieve because of their different and closer relationship with clients. This detachment is one of the advantages of the split profession, but it is already under pressure from CFAs and will increase with the introduction of direct access, alternative business structures and DBAs, namely contingency fees;
• be a second pair of eyes and ears: this can be very useful when clients are looking to their legal team for advice or reassurance;
• speak to insurers or funders: since insurers and funders, when deciding whether to back a case, often rely on counsel’s opinion, this can be invaluable, as their word as counsel carries more weight;
• draft legal documents: their drafting skills are often better than solicitors’ for documents such as court orders, charges and undertakings, and if they are prepared to help with the drafting of the settlement documentation it speeds up document production. Some barristers bring laptops and printers with them. The solid working knowledge that barristers have of the court process and the CPR means that they can be invaluable in drafting orders or contracts that need court input or approval or that require a series of steps which rely on one another;
• agree fees: if they are also on a CFA, they participate in the inevitable three-way discussion on fees;
• deal with unexpected points better: because of their experience in court, counsel are often more experienced at thinking on their feet;
• be a defence: in relation to attempts by the other side’s counsel (and sometimes solicitors) to bamboozle on the law;
• share the load of deciding to re-price the risk of doing better at court and lowering clients’ expectations: this is particularly valuable if litigation is underway and both parties are firmly entrenched, and it can take some of the agony out of the reappraisal;
• give an accurate statement of their views on litigation risk to the mediator if asked: clients and solicitors routinely tell mediators that their counsel has told them they have an 80% chance of winning. More often than not, the barristers express their estimates in more guarded and qualified terms. When they do this, it helps a sense of reality to develop.
It is not essential to instruct counsel to attend. Many mediations are successfully conducted without counsel. A barrister who adopts the published aims of the SCMA will be of great assistance; one who does not will probably provide further evidence that barristers are a barrier to mediation. On balance, if the client can afford it, it is good practice to instruct counsel to attend the mediation with the solicitor.
10.3.5 Common mistakes made by barristers
Here are some of the most frequently observed ways in which some barristers conduct themselves at mediations and which do not help the settlement process.
Some barristers:
• turn up with bundles of authorities for the mediator and standard legal works;
• break into advocacy mode at the slightest opportunity and focus on getting one over on the other side instead of winning them over;
• try to control the process, for example, they say that there is no need for a joint opening session or they insist on talking to their opposite number in private without the mediator being present;
• put on a show by, for example, making aggressive and sometimes sarcastic opening statements, threatening to walk out, making exaggerated expressions of confidence in their own case, being deliberately rude to the other side and sometimes to the mediator;
• boast...
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