Civil Engineering Reference
In-Depth Information
expense that is rarely justified.
1
Almost always it is the result of one
party bringing counsel and so the other parties feel the need to match
and bring theirs. It is quite a brave solicitor who advises a client not to
reciprocate when a party decides to bring counsel. The easy, and safer,
option is to bring one as well. However, it is good to be brave, and expe-
rienced solicitors will recognise that mediation is not the best arena for
counsel to use their skills. This is not a place for great, or even mediocre,
oration, or even for argument on legal detail. Both will cloud the key
reason for being there - to achieve a deal to which all parties can say
'Yes'.
But if counsel are to attend, to be truly effective they should be clear
about their role. The instinct to lead, to speak, to control their client has
to be resisted. Counsel are most effective in mediation if they are able
to do the following:
Advise. That is their natural role and it can be a great asset in media-
tion if they are able to maintain a position of independence amongst
others who are inevitably partial and who have a keen interest in the
outcome.
Use their relationship with other counsel. Counsel almost always
have a respectful relationship with each other and this can be an asset
in mediation if negotiations get deadlocked or matters get heated.
The mediator may well feel able to put counsel together to move the
mediation towards settlement when other routes are blocked.
Remain independent. This may be difficult because the counsel's role
is primarily as advisor and their advice may well be different from
that of the other party's counsel(s). It is most likely that counsel will
feel the need to defend their opinion. However, if it is possible, a
more detached and independent role can be a real asset to a party,
both in reality-testing their position and by being a sounding-board
for positions and potential offers.
Avoid being their client's mouthpiece. This is the most challenging
of all - the instinct is always to speak on behalf of their client. It
is their natural role in a courtroom and a difficult one to shake off
in a mediation. The mediator will want the parties to speak, and
preferably to speak more that the legal team. I have yet to be in
1
See report on the December 2007 Debate 'Barristers are giving mediation a bad name'
on the MATA website www.mata.org.uk.
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