Litigation focuses on resolving disputes between parties based on the respective legal rights of the parties. Generally, the parties use a legal representative (lawyer) to present their arguments in court to the judge, who will make a determination to resolve their dispute. The dispute resolution process is defined by the Court.
Mediation is based on the parties themselves resolving their disputes based on their respective interests. In mediation, the role of the lawyer is to assist their client during the mediation process.
As the parties have previously been unable to resolve the dispute themselves, a mediator is appointed by the parties to facilitate the communications between the parties, and to manage an appropriate mediation process for the parties which will enable them to find solutions to all their issues.
Deciding to involve a lawyer in the mediation is a key decision which each party needs to make early in the process resolution process. Generally, mediation without any legal representatives present is most appropriate for “simple” disputes.
This approach assumes the parties are happy to negotiate directly with each other and have a reasonable understanding of their rights and obligations.
In more complex disputes which may involve a point of law disputed by the parties, or the determination of the relevant law applicable to the dispute, having a lawyer present at the mediation may be useful in resolving any legal issues between the participants involved in the dispute.
At no time during a facilitative mediation process does the mediator provide any legal advice or express an opinion. Generally, if one party is supported by a legal representative, the mediator will suggest that the other party consider the use of a legal representative for the mediation.
The need for legal representation at a mediation is therefore dependent on the specific nature and the circumstances of your dispute.
What is Mediation?
Mediation is an alternative dispute resolution (ADR) process which enables businesses to resolve disputes with the help of a neutral third party/mediator. This approach provides several benefits to the participants when compared to litigation.
These benefits typically include resolving disputes quickly and cost-effectively, confidentiality, and the preservation of valuable business relationships between the parties.
While mediation is compulsory under family law as the first step in resolving family disputes, its popularity is also growing significantly in the workplace and the commercial world. Several factors contribute to this trend, including:
- Increased awareness and acceptance of mediation by businesses.
- Availability of skilled mediators, including those specialising in business disputes.
- A combination of COVID-19 and technological advancements have promoted Online Dispute Resolution (ODR). ODR makes dispute resolution more accessible and convenient for businesses and individuals to engage in mediation. to address challenges due to multiple geographic locations and time zones of the parties involved in the dispute.
Mediation is a flexible process which is determined by the mediator to meet the needs of the parties to resolve the dispute. In determining the process, the mediator will consider a range of factors, including the nature of the dispute, the persons involved in the dispute, and the documents required for the mediation to take place.
Mediation consists of various meetings, namely, a preliminary meeting before the mediation, joint and private sessions during the mediation, and sometimes a final meeting at the conclusion of the mediation.
When Should You Consider a Lawyer?
Seeking legal representatives for support during mediation may be critical in certain situations. For example:
- Complex Legal Issues: The relevant law, contracts, intellectual property, and significant financial implications.
- Power Imbalances: perceived unequal bargaining power between parties.
- Protecting Business Interests: Ensuring long-term viability and minimising risks.
- Court-Ordered Mediation: If the court orders you to participate in the mediation process, you most likely already have a lawyer who is familiar with your claim.
- Specific Legislation: In some areas of law, mediation may be encouraged or even required by legislation (for example, family law and parenting plans).
What is the Role of the Lawyer in Mediation?
When considering if you should have a lawyer attend your mediation, it is important to understand the role of the lawyer in mediation and the degree of involvement you want from the lawyer in the mediation process.
The Law Council of Australia, in their “Guidelines for Lawyers in Mediations” states:
- A lawyer’s role in mediation is to assist clients, provide practical and legal advice on the process and on issues raised and offers made, and to assist in drafting terms and conditions of settlement as agreed.
- A lawyer’s role will vary greatly depending on the nature of the dispute and the mediation process. It may range from advising a client before mediation to representing a client during mediation and undertaking all communications on behalf of a client.
The skills required by a lawyer to effectively assist a client in mediation are different from those skills required by a lawyer to represent a client in a court.
In mediation, the lawyer needs to use their persuasive skills to convince the other party and their lawyer that the solution proposed by the lawyer’s clients is the best option to resolve the dispute for all the parties involved in the dispute. Legal arguments and knowledge are useful but not always required.
Step-by-step Guide in Determining the Need for a Lawyer
Step 1: Assess the Situation
Carefully evaluate your specific circumstances. Consider the following:
- The complexity of the legal issues involved.
- The potential risks and rewards of mediation.
- The perception of any power imbalances between parties.
- Who will be attending the mediation to represent each party and if the other side have a lawyer present.
The objective of mediation is to enable the parties to find a mutually acceptable solution to their issues. During the mediation process the parties are aware of their legal rights; however, their focus is not to argue who is legally right and who is wrong. Parties involved in a dispute should also be aware of what options are available to them if the mediation is not successful.
Determine if you will have a lawyer assist you at the mediation and what tasks will be delegated to the lawyer to perform during the mediation process.
Step 2: Consult with a Lawyer
Schedule a consultation with an experienced lawyer specialising in mediation and the relevant area of law related to your dispute. Discuss your specific case in detail, outlining your concerns and goals.
Seek their professional opinion on the potential benefits of legal representation at the mediation and the related costs.
Step 3: Consider Potential Risks
Analyse the potential risks and consequences of not having legal representation at the mediation. Consider the possibility of unforeseen legal complexities that may arise during the process.
Determine if the mediator can suspend the mediation to enable you to deal with any legal issues.
Step 4: Evaluate Costs
Determine your budget and obtain cost estimates associated with legal representation at the mediation. Consider alternative options, including some form of limited representation if full legal representation is not possible.
Typically, each party involved in the mediation is required to pay their equal share of the cost of the mediator’s fees and any associated costs. Each party is responsible for their costs associated with the mediation.
Conclusion
Ultimately, the need for legal representation in mediation depends on the nature of the dispute and your individual circumstances. By carefully considering your situation, you can make an informed decision about whether legal representation is right for you or not.
Don’t hesitate to talk to the mediator and potential legal representatives to make this critical decision.
FAQs About Needing a Lawyer for Mediation Services
What are the disadvantages of mediation?
As mediation is voluntary and the outcomes are determined by the participants, mediation does not guarantee an agreement will be reached at the conclusion. If the parties agree on a solution and sign a mediation agreement, it may be difficult to enforce the mediation agreement without further legal advice.
What is necessary for mediation?
Mediation requires the willingness of all involved in a dispute to participate in the mediation and make a genuine effort to find a solution to the dispute. A neutral, independent person (the mediator) is essential to facilitate the process.
Open communications with the other party and a willingness to explore potential options which could resolve the dispute are crucial for a successful mediation.
How much does mediation cost in Australia?
The cost of mediation in Australia varies depending on the qualifications and experience of the mediator and the total time required to conduct the mediation. Currently, some community legal centres provide free mediation for specific issues.
The standard practice is for each party involved in the mediation to pay their equal share of the cost of the mediator’s fees and any associated costs (meeting rooms, travel time). The estimated cost of the mediation is normally paid to the mediator prior to the start of the mediation. Each party is responsible for their costs associated with the mediation.
What are the various steps of mediation?
The typical steps involved in the mediation process include:
- Preparation: Gathering information and helping you prepare for the session.
- Preliminary Meeting: the parties and their legal representatives meet with the mediator to understand and agree on the mediation process and the timing
- Opening statements: Each party presents their perspective on the dispute.
- Joint sessions: Parties agree to discuss the issues together, with the mediator guiding the conversation in order to identify options and explore solutions which could solve their issues
- Private caucuses: The mediator meets with each party separately to discuss their concerns and interests.
- Prepare an agreement: If an agreement is reached, the parties document and sign an agreement which states the terms and conditions agreed to by all the parties to resolve their dispute.
What is the success rate of mediation?
The success rate of mediation varies significantly depending on the type of dispute and the willingness of the parties to reach an agreement. Up to 80% of disputes are solved at the conclusion of the mediation. Up to 15% of the disputes not resolved at the conclusion of the mediation are settled within a few weeks after the mediation.
What is the settlement rate for mediation?
The settlement rate for mediation can be high, often ranging from 60% to 80% or higher, depending on the source and type of dispute.
How do I prepare for mediation in Australia?
To prepare for mediation in Australia:
- Gather all the relevant documents
- Understand your position including your legal rights and responsibilities
- Identify your key interests and a range of desired outcomes which are important to you and potentially achievable through mediation
- Identify potential mediators you could propose to the other party
What are the fees and costs of mediation?
Mediation fees typically cover the mediator’s fees, which can vary based on their experience and the complexity of the case.
How many mediation sessions will I need?
The number of sessions required depends on the complexity of the dispute and the progress made during each session. Some disputes may be resolved in a single session, while others may require multiple meetings.
Disclaimer: This information is provided for general guidance only and does not constitute legal advice.
