{"id":264978,"date":"2025-09-23T08:03:12","date_gmt":"2025-09-23T08:03:12","guid":{"rendered":"https:\/\/dominiclevent.com\/blog\/?p=264978"},"modified":"2025-09-23T08:03:12","modified_gmt":"2025-09-23T08:03:12","slug":"dispute-resolution-the-value-lawyers-bring-to-mediation","status":"publish","type":"post","link":"https:\/\/dominiclevent.com\/blog\/dispute-resolution-the-value-lawyers-bring-to-mediation\/","title":{"rendered":"Dispute resolution: The value lawyers bring to mediation"},"content":{"rendered":"\n
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Mediation is fast becoming an essential part of dispute resolution and a key tool for lawyers in their dispute strategy. This piece focuses on how lawyers can work with mediators.<\/p>\n

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Lawyers add value in a mediation. The skill of acting for a client in a mediation is, however, different from advising on the legal merits in litigation. Lawyers can contribute, particularly when working with their client on risk assessment and finding a solution, rather than simply making legal arguments in a different forum.<\/p>\n

Strategic use of all dispute resolution tools:<\/strong> A key role a lawyer can play is in using mediation (and indeed other forms of dispute resolution) to their clients\u2019 best strategic interests.<\/p>\n

What lawyers should be thinking of at each stage \u2013 pre-action, at each step of the litigation, and post-judgment on costs and enforcement \u2013 is what the best tool is to use. That may well mean using mediation sooner (including pre-action), more than once or even when a dispute has not yet crystallised. There can now be no criticism of suggesting mediation; if anything, not considering mediation might mean a good opportunity is missed.<\/p>\n

Identifying mediators for a dispute is also an important role for lawyers, such as whether you need someone who will be robust on the law, someone who is skilled with commercial deals or perhaps someone good with emotion. Having a good idea of how different mediators work means you can make a well-judged recommendation.<\/p>\n

Managing client expectations: <\/strong>Explaining what a mediation is (and is not) to a client, and helping them to focus on what is productive to reach a resolution, is another key piece of work for lawyers to do both before and during the mediation day. Mediation requires thinking differently about a dispute. Instead of focusing on matters such as evidence-gathering and on who has the better argument, in order to come to a settlement, the parties will need to shift to looking at things from a broader and future-focused perspective. Lawyers can help clients to understand the process in advance and keep them on track during the day.<\/p>\n

Risk assessment:<\/strong> During a mediation, lawyers are well placed to give a cool-headed, objective assessment of what is on offer, and of the risks associated with pursuing litigation, including as to prospects of success, costs risk, business resources, and evidential strengths and weaknesses. One valuable contribution a lawyer can make is analysing and advising their client throughout the negotiation on the best and worst alternatives to what is on the table, so they can decide whether to accept, and to inform counter-offers.<\/p>\n

Commercial and personal: <\/strong>Lawyers are also able to consider the commercial or personal needs of their client and to advocate for those needs being met in any potential settlement. Lawyers will be able to explore with their clients what matters to them in a way that will likely benefit from the luxury of time that a mediator may not have within the confines of the mediation process. For sophisticated clients or long-held client relationships, the lawyer will also have an overview of how this matter fits within their clients\u2019 wider context. That is all valuable insight to share with a mediator.<\/p>\n

Working with the mediator:<\/strong> Mediators often find it useful to have established a relationship with the lawyer, so that the lawyer can freely tell them anything, however inconsequential it may seem. This is good material for a mediator. Understanding what mediators do and how they do it also means that you can target your efforts to what will help.<\/p>\n

Legal arguments: <\/strong>The deployment of legal arguments in mediation must be considered with care. Often, a number of types of issue will become part of the discussion, and they will include commercial interests, personal needs, technical aspects and, of course, the legal arguments.<\/p>\n

In some mediations, a commercial approach may take primary focus. If that is what matters most to the parties, then that should take precedence. That is not to say that mediations should ignore legal matters. If there are important legal points to be dealt with, they must form part of the discussions in the mediation and the mediated settlement must deal with them if it is to fully provide a resolution.<\/p>\n

There are also some mediations where legal aspects may need to be foregrounded in order to achieve a settlement. A good example of this is a mediation with a public body, where they may have requirements that they have to act in line with. Mediation remains perfectly possible in those cases, and any mediated settlement may have to satisfy those requirements as well as suit the parties. This is an area ripe for lawyers to assist with \u2013 working within those requirements to find a settlement, and helping their client understand them is essential to a resolution.<\/p>\n

Ultimately, lawyers can use mediation to strengthen their strategy for a dispute, and play an important role in helping clients come to a fully informed and well-considered decision. And mediation is not only relevant to disputes lawyers. In addition to powerful mediation in specialist areas where circumstances may be so personal that one might hope recourse to litigation is not necessary (such as SEND, medical cases and Court of Protection), mediation is increasingly being used in transactions and dealmaking, so lawyers of all types \u2013 including general counsel \u2013 may find these skills helpful to understand.<\/p>\n

Kelly Stricklin-Coutinho is a CEDR-accredited mediator, barrister at 39 Essex Chambers and chair of the Civil Mediation Council. The CMC\u2019s annual conference<\/a> takes place on 12-13 November<\/strong><\/em><\/p>\n<\/div>\n\n

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