Working with counsel and experts in mediation
by Duncan Crine
Do I really need a barrister or an expert at mediation – surely they will just complicate matters and increase costs?
You may have heard this sort of remark, even from members of the bar, but things have moved on.
There is no obligation to involve your counsel or expert in mediation but your client may benefit from their knowledge, skills and experience, to cut through the complications and ultimately save costs. Ask yourself whether their presence is likely to make a successful outcome more likely and, if so, how best to work with them to achieve that.
So when am I most likely to want to involve my counsel or my expert?
When they can complement your own knowledge of the case, the client and the client’s objectives.
Mediation is not a time for ‘grandstanding’ and there are no prizes simply for bringing along the most impressive team. Instead, think about what they would actually contribute on the day. Counsel may be better able to convey a core legal argument, or have a better grasp of the factual minutiae, having previously prepared an advice or statement of case. A surveyor, accountant or other expert may be better placed to explain a key technical issue or usual business/market practice within their specialist area.
What if the other side bring along their counsel/expert, surely we need to fight fire with fire? And won’t I need counsel to draft the position statement and do the advocacy, at least in the joint opening session?
Not necessarily, that is a matter for you – position statements are not pleadings and mediation is not a mini-trial or rehearsal.
Remember that the whole process is ‘without prejudice’, a facilitated negotiation – if it doesn’t work, your client can still have their day in court. The mediator will be focussed on the parties, and on helping them to identify and overcome the barriers to settlement, not who has the most polished position statement or opening speech.
OK, so I’m thinking about using my counsel or my expert, what now?
Be clear about what role you want them to play (on the day and/or beforehand), check their charges and availability, and make sure they are briefed properly and in good time.
Think about cost-benefit and avoid burdening them with unnecessary papers. Usually, they will have given some input already, so they should not need extensive instructions or papers. As a minimum, provide them with copies of the position papers and any core documents that are likely to be referred to on the day. If court proceedings have already begun, include any statements of case, witness statements and expert reports. Ideally they will have already met the client. Crucially, make sure they understand the mediation process, your client’s objectives and why you want them there.
Is that it?
Not quite. Make sure the mediator knows who will be attending and why (there is often a pre-mediation chat with the mediator). Allow time at the start of the day for your ‘home team’ to get together, recap who will be doing what, and ensure you are all singing from the same hymn sheet.
About the author: Duncan Crine is a solicitor and accredited mediator with over 20 years’ experience of representing clients at mediations. He is a partner at Freeths LLP where he heads up the Dispute Management team in Oxford.