It is invariably of benefit, if not essential, for solicitors to attend commercial mediation. However, it should not be a matter of simply transferring the litigation approach to the mediation arena.
- Support the client/decision maker
This contrasts to the solicitors normal role of leader and is particularly key in the negotiation and conclusion stages of the mediation.
- Confident advisor
The solicitor will confidently advise clients on the relevant legal framework, the best strategy to adopt, the available alternatives and on negotiating the best deal.
This is particularly important when times are tough or the mediation, as often happens, is in deadlock. Appropriate encouragement from the solicitor will provide the influence to inspire the client to work towards a positive outcome.
The solicitor’s role is to facilitate the client in making the best decision to suit their needs. The solicitor need to be prepared to stand back and let the client do as they think best, irrespective of legal advise.
- Wise head
To be aware of the potential of getting into a face-losing situation and so steer the client away . The solicitor knows the client better than the mediator does, and so is in the best position to anticipate those situations.
- Creative thinker
The solicitor must use his/her experience and knowledge to creatively explore all options and to keep the team engaged and active in seeking the best solution.
This places a different responsibility on the solicitor representing a client in mediation. It is not easy to adapt from a lifetime of adversarial litigation to a collaborative, cooperative and principled negotiation style. Such a change can be a big challenge. But it is vital if the mediation process is to be of best effect and clients are provided with a service that is appropriate to their needs and interests.