Good fences make good neighbours

 

Cons

  1. Mediation involves consensus. Barristers are fine in the adversarial bear pit but their skills are unsuited to the pursuit of commercial accord. This is a nice way of saying that most Counsel have difficulty seeing past their own egos.
  2. Barristers have to be paid (their clerks insist on it). If a mediation fails it may be hard to justify the fee, especially if they insist on a ‘brief’ fee and it is the mediation itself that turns out to be brief.
  3. If we have our counsel the other side will want theirs and theirs may be obstructive (or cleverer – difficult to know which is a worse outcome)
  4. Some barristers have a reputation for being domineering and overbearing, only able to be in a room if they are the centre of attention. This particular psychiatric disorder is peculiarly ill-suited to a mediation which is supposed to be (i) client-centred (ii) non-directional. Do they not know that ?
  5. Some mediations go on for hours. Well-adjusted people are unlikely to want to spend a whole day with a member of the English Bar. For all we know, pomposity could be contagious.
  6. Barristers always wait for someone to offer them the sandwiches and the biscuits. This means that you end up playing mother every time. This looks incongruous to the client bearing in mind your hourly charging rate.

Pros

  1. Instructing a barrister on a mediation will save time writing opening submissions: it is not so embarrassing to have to punt the job down to Counsel if he or she is attending the mediation.
  2. There is advocacy involved in mediation and not just at the beginning of the day: a good barrister should be able to persuade. Whether it is a Judge in the formal setting of a courtroom or an opposing lawyer in a mediation, it is still going to be necessary to put the client’s case forward in the most attractive way possible. Barristers usually have more experience of advocacy. That is what they are doing (or supposed to be doing) all those times that you can’t get hold of them.
  3. The barrister’s experience will also help in making snap decisions, as the mediation develops, about whether the prospects of success in court have altered. Information often emerges in the course of a mediation that has the potential to harm or to enhance a party’s prospects of success at the trial that would have to take place if the mediation fails. In other words, with a barrister at the mediation you have someone else to blame if a good offer at the mediation is refused and the litigation subsequently lost.
  4. A good barrister should regard detail as his (or her) friend (many have few other friends). Forensic skills – spotting the tiny point of detail that pulls down the structure of the opposing argument – are as required in mediation as they are in litigation. Those barristers who have a knack of doing that in court carry the same value in a mediation if they can do the same. Try finding one though.
  5. Having two lawyers on your team can be very useful if the mediation goes on for hours and hours and you have mastered the skill of sleeping with your eyes open (compulsory subject at College of Law).
  6. Some barristers will bring their pets to a mediation if you ask them nicely and they may turn out to be cute (the pet not the barrister). This may not be a very strong reason for having them there but just look at the others.
  7. If the mediator suggests a lawyers-only meeting to hammer out the legal issues it is good to have your barrister there if he or she is better than you at advancing spurious contentions wholly unknown to the English Law, without smirking.
  8. If the mediation is successful the barrister can draft the settlement agreement. Many barristers will not mind you slipping away and giving you a call on your mobile when they have finished the drafting and it is ready for your approval. This is good as you may well be tired by then (though you will need to make sure that the noise of the other customers in the pub does not drown out the sound of your ringtone).

Answer

Use them selectively. Have them along for the first couple of hours then chuck them out on the basis that they are available on the end of a phone/fax/e-mail. Make them charge for this on an hourly rate (it should not cost very much). They keep harping on about wanting to be part of the team so let them be. Every good team needs a gritty fighter ready at a moment’s notice to leap off the substitutes’ bench. Oh is that not what you meant when you said you wanted to be part of the team? Sorry, son, that’s showbiz.

Jonathan Seitler QC
Accredited Mediator