A previous blog post titled Participating in Mediation, described the different ways mediation can be structured. Now, let’s explore the pros and cons of bringing an attorney to mediation versus participating without one.

Cost- Preparation: Preparation is necessary regardless of whether the attorneys attend, but the “party-only” mediation may require more upfront attorney prep time. Why? Attorneys will want to ensure their clients understand the potential outcomes and scenarios the mediator might propose in the attorney’s absence, and whether certain positions are reasonable in achieving the client’s main objectives.

Cost- Travel and Attendance: Attorneys typically bill for travel time and for their time while at mediation. While this cost can be significant, it should be weighed against the even greater cost that will be incurred for further hearings and trial if the case does not settle due to not having the assistance of attorneys.

Scheduling/Availability: Mediation is often a faster alternative to litigation, but adding attorneys into the mix can complicate scheduling. Just as traditional litigation involves coordinating five different schedules (the court, both attorneys, and both parties), attorney-assisted mediation poses similar scheduling issues.

Likelihood of Settling- With Attorneys:

  • Parties may feel more confident in decision-making.
  • Attorneys provide structure, keeping discussions focused on legally relevant concerns of their client.
  • Attorneys can dissuade their clients from holding onto unrealistic expectations.
  • Some attorneys dominate discussions and give their client tunnel-vision, discouraging compromise.
  • Can feel more adversarial if one attorney overpowers the negotiation.

Likelihood of Settling- Without Attorneys:

  • May feel less confrontational, allowing for more open discussions.
  • Can be more cost-effective in the short-term if an agreement is reached.
  • Parties may agree to unfavorable terms.
  • An attorney who was not part of the mediation process might be more likely to encourage a party not to follow through on a mediated agreement.

What type of mediation is right for me?

The success of mediation depends on factors such as conflict levels, the parties’ personalities, attorney dynamics, mediator style, preparedness, and complexity of issues.

Ultimately, the decision to bring an attorney is up to the clients—unless the court orders otherwise. Attorneys and clients should carefully consider these factors to determine which mediation format best serves their needs.

 

The choice of a lawyer is an important decision and should not be based solely on advertisements.