BEING A LAWYER IN MEDIATION
Updated: Apr 1, 2020
In a typical workplace mediation, the only people present will be the parties and the mediator. However, sometimes issues have moved on to a stage where lawyers are involved. This could be the case where the employment relationship continues and also where an employee has resigned or been dismissed. In either case the employee may have raised employment tribunal proceedings.
In these mediations lawyers play an essential role. I would suggest their role is twofold: the voice of their client and the advisor. Let’s have a look at each of these.
The voice of their client
Being the voice of their client does not mean that the lawyer takes over the proceedings and says everything that they wish to say with their client saying very little or nothing. In fact, in many ways the opposite should be true. Mediation is different to the alternative of employment tribunal proceedings because it enables the parties to speak openly, freely and directly with each other. It is an opportunity which both parties should be given the ability to use to maximum effect. Lawyers need to prepare their clients for that moment when their client will be asked to speak directly to their opponent. Clients should be encouraged to think carefully prior to the mediation about what it is they would like to say to the other party. It may be helpful to prepare some notes, though it is also helpful for the clients to do this themselves, rather than have something prepared by their lawyer.
It is important during mediation for parties to know that they can speak openly and honestly and in their own words. You normally find that even when people have prepared what they want to say, they will often put their notes aside and then just speak from the heart. Lawyers should encourage their clients to think about using the opportunity to say things which have not yet been said. It is not unusual for information to be disclosed during mediation which simply isn’t, and never would be, disclosed during legal proceedings. Therefore, lawyers should encourage their clients to think about the bigger picture and not just the legal issues.
Having said that, there is a still an important role for the lawyer to be the voice of their client. It may be the client is simply too emotional to speak and wishes their lawyer to speak for them. Or it will often be helpful for the lawyer to supplement what the client has said. Although mediation is not a formal hearing which will result in a case being decided, it is nevertheless a useful forum for lawyers to put forward certain arguments or a summary of events to underline where the key issues lie. Mediation can also be a place for lawyers to speak directly with each other, and without their clients present. Due to the confidentiality of mediation they can speak openly about certain issues, including possible resolutions. It can also be helpful for discussions over more complex legal issues to take place only between lawyers, which can help certain matters to become more clear.
The terms of a resolution will need to be prepared, and the lawyers will play a key role in ensuring that the key issues are addressed. Where employment is continuing it’s worth including provision for what happens if there is further disagreement down the line, perhaps building in provision for future mediation.
Particularly in cases where the employment relationship has ended, the mediation will often move from an initial discussion over the issues to a discussion around a financial settlement. Lawyers will then take on the more traditional role of negotiator which they will be very used to carrying out in their day to day practice.
Mediation provides a forum where settlement negotiations can happen quicker. However, this is often the most challenging aspect of the lawyer’s role in mediation, particularly for the lawyer who is representing an aggrieved employee or former employee. Individuals who have brought claims can often find the process of mediation overwhelming, and may feel they are being pressured into reaching a settlement in a very short space of time. Settlement negotiations, outwith mediation, will often take place over a period of weeks or months. Mediation has the added advantage of allowing new information to be disclosed and even apologies made, which can be the catalyst for a resolution. Even so, the speeded up nature of settlement discussions can often put individuals off the idea of settlement.
Therefore, it is important for lawyers to prepare clients in advance of mediation, so that their client has some understanding of what is likely to happen. Expectations should be managed with regards what a settlement might look like. During the mediation, and where a good offer is made which the lawyer believes should be accepted, the lawyer may need to be extremely forthright with their client, being absolutely clear about the implications of not accepting the offer.
Even if a settlement cannot be agreed during mediation, it is not unusual for discussions to continue between lawyers after the mediation has concluded, with a settlement later being agreed. The mediation might take parties most of the way there, and a break with time to reflect can often lead to an agreement not long afterwards.
In summary, being the voice of the client does not mean taking on the traditional advocate’s role of presenting arguments. The client must be able to make the most of the opportunity which mediation brings and speak directly to the other party. It is that which often leads into discussions about a resolution. Lawyers can, however, also make the most of mediation by taking the opportunity to summarise key points where appropriate and speak directly with each other. Being an advisor in mediation will involve ensuring all necessary points are agreed. It can be challenging for lawyers when a financial settlement is being negotiated, as settlement discussions happen quicker than they usually do, so preparing ahead of time with the client and managing expectations is important.