The Mediation Litmus Test
How a Lawyer's Approach to Mediation May Reveal Their Commitment to the Client
2nd May 2025
The core benefits of mediation are well publicised and relatively well known; that is, for anyone who is prepared to listen and evaluate those benefits; whether they be the main factors of cost-effectiveness, control, flexibility, timeliness, confidentiality etc.
However, it only occurred to me recently that a hidden benefit of mediation in the whole legal and dispute resolution process that is rarely spoken about, BUT further enhances many of the more readily recognised benefits of mediation…….is that of using the notion of mediation to indirectly evaluate whether a party in a dispute has the right legal representation or advice.
So whilst I am at risk of ultimately ‘biting the hand that feeds‘; not least as many a mediator relies on law firms, lawyers, solicitors and barristers as a primary source of referrals for mediation assignments……..please bear with me on this reasoning.
Mediation – Loved, Loathed, Feared and/or Misunderstood
During my time as a student of mediation (which never ends) or in the mediation profession itself, my observations are that; many in the legal fraternity are either amongst the
- strongest advocates and supporters of mediation,
or - biggest hurdles, obstacles and provide resistance (often unjustified) towards mediation.
Now I will let you draw your own conclusions as to why such resistance exists. Some reasons for this are more obvious than others, whether it be innocent misunderstanding and misinterpretation, the legal psyche or something at the other end of the spectrum that may well lead others to doubt their acknowledgement of the core legal principle of ‘fiduciary duty’ to their client.
A Time and A Place !
Like many a mediator I am prone to being a bit ‘evangelical’ at times when it comes to mediation, but I would like to think that is measured and tempered, without ‘forcing it down anyone’s throat. Or blindly and naively thinking that mediation is a ‘one size, fits all’ tool that can resolve any dispute. And if I did, you would be welcome to address this delusion by ordering me the required medication and arranging a ‘fitting’ for one of those lovely jackets that fasten up at the back.
Because any professional mediator; whose ethics and understanding of true mediation values and many of the core principles are correct – won’t readily promote mediation as a solution to all disputes. And should clearly highlight those disputes where mediation just isn’t viable, even to the extent of rejecting paid mediation assignments.
Don’t misunderstand me however, SOME mediators will focus on the bottom line and take on any dispute; as they will more than likely be receiving the same fees for a failed mediation, as they would for a successful one.
Hence this approach of a mediator, in deciding whether mediation is appropriate (OR NOT) in a specific dispute should be somewhat be replicated by the lawyer and legal team advising those parties to a dispute and whether it is feasible and realistic for their client.
Thus, much like the mediator this too affects the bottom-line (financial considerations) of the lawyer, solicitor or legal adviser concerned; as mediation could provide a quicker and more cost-effective resolution for their client with lower legal costs.
Forward-Thinking, Client-Focused and In-Demand
From my own experience (and observations); it is those lawyers, solicitors and barristers who are the busiest and most in demand who are most open to considering mediation for their clients who find themselves involved in disputes. They want to:
- get the dispute resolved quickly and satisfactorily,
- save time and be efficient,
- demonstrate cost saving to the client,
- retain the long-term repeat clients,
- grow a reputation for resolving 'cases',
- reduce distractions, optimise and enable them to focus on the next case they have to juggle,
....... and dare I say …..
-
not have that 'L' (loss) on their record.
……………. with that said, there are (in my view) still far too many in the legal profession who sadly demonstrate a clear reluctance, if not resistance, towards mediation.
Granted a lot of the time it is down to a misinterpretation of what mediation truly is; which is acceptable up to a point (not least as lawyers have enough to do and complex processes and procedures to follow), especially with something like mediation which is relatively new when compared to many other legal practices, doctrines and methods. However, it does seem that there are far too many who…..shall we say may be looking at the viability of mediation, through a ‘cash-focused’ lens (for them) rather than a ‘client-focused’ lens?
Mediation May Not Be Considered Lucrative ?
There is no denying the fact that deploying mediation in a dispute can save time and money…..for the disputant (client) – after all it is one of the main ‘selling-points’ mediators promote.
However, as already stated the ‘flip-side’ of this is that; in the short-term it does inevitably affect the bottom-line of the lawyer or their firm in financial terms. A thought that will make partners in a law-firm shudder at the thought and jeopardise the progress of those trying to climb the ultra-competitive ‘legal ladder’ with ‘fee-earner promotions’ (a concept I find somewhat shocking and unacceptable in an industry supposedly cemented in the values of ‘fiduciary’ duty).
Some may be blinkered to the fact that the long term gain in retaining happy clients, as a lawyer (or firm) who has the reputation of bringing about timely and painless resolutions to disputes and saving the client time and money – will lead to more clients and more work. Rather than that of feeding the narrative of ‘expensive legal costs’ and clients bemoaning a lawyer who is always ‘on the clock’ and charging them a ‘princely’ sum by the hour.
Hence, here in lies the underlying premise of this article, that a lawyer or firm who (genuinely) raises the topic of mediation as a means of resolving their clients dispute, is in effect upholding the sanctity of that key element of ‘fiduciary duty’ to their client, and putting them first above any other factor.
This does not mean that I would expect every lawyer, solicitor or barrister to ‘blindly’ say to their client that they should employ mediation in a dispute, much the same as they should ignore mediation – as both notions are just naïve, lazy and unprofessional.
Yet by making the client aware of mediation, and adjudicating genuinely whether mediation is viable and feasible OR NOT (as the dispute may be), the client is in the position to evaluate and make that decision based on sound and fair legal advice and expertise. With the aim of bringing their dispute to a timely, less stressful and more cost-effective resolution.
Never Say Never - Timing Can Be Crucial
There is however one other aspect that needs to be considered in relation to all of this, and that is TIMING. And again as a newly qualified mediator I was as guilty of this as anyone, and should have appreciated far earlier that; just because mediation IS or IS NOT feasible in a dispute at one point in time, that that cannot change. Whether it be a change of mindset, a change of circumstance, new information being available or the intervention of a 3rd party.
The simple fact is that in MOST disputes the matter of deciding whether mediation is viable or not is not a simple or binary decision, given the number of variables that need to be considered. And as such the feasibility of mediation in a dispute can change over time. And for that matter even change back and forth, often due to things that are outside of the lawyers or clients control.
In Summary
Hopefully by this point (granted with a few detours along the way) I have presented an added benefit in using the premise of mediation in quantifying the value and appropriate nature of the appointed legal advisers to a client in a dispute.
And just to summarise I would say that at the start of the legal process regarding the dispute; the legal advisers to ANY disputant should advise on the viability of mediation to the dispute, and present reasonings as why it MAY or MAY NOT be feasible in resolving the dispute……and NOTABLY revisit the notion of mediation throughout the timeline of the case, rather than cast it aside once and abandon it forever.
IF THEY DON’T, ………….. THEN …..WHY NOT?
And ultimately are they the right legal advisers for the client and/or to handle the dispute in the best interests of the client?