The lawyer's role as counsel in mediation: some practical and ethical considerations

by Joyce W. Bradley

The role of counsel in ADR, as in litigation, is to represent the interests of the client persuasively and ethically. In addition to duties under the Legal Profession Act, the Law Society Rules and the Professional Conduct Handbook, which apply to both ADR and litigation, a lawyer will use different approaches and skills as counsel in the ADR setting.

This is so for two reasons: 1) the focus of ADR is more on the client's underlying interests than on the goal of succeeding in litigation (which may or may not be consistent with those underlying interests), and 2) the client and counsel take responsibility for decision-making and resolution of the dispute, rather than delegating that responsibility to a third-party decision-maker.

In this article I deal primarily with mediation since other ADR processes, such as arbitration and third-party evaluation, retain the element of third-party decision-making, or at least opinion. I have chosen four areas to discuss.

1. What should a lawyer do and not do in mediation to achieve a client's objectives?

Litigation counsel is both an advocate and an officer of the court. There is a parallel in mediation since counsel both advocates client interests and helps advance the mediation process. Certain lawyer skills that may be extremely effective in litigation, however, are counter-productive in mediation — in particular, any that reduce the likelihood of consensual decision-making. The key to mediation is communication and understanding. Persuasiveness and advocacy play an important role, but it is the clients, not the judge, who must be convinced.

For example, the use of closed questions — a cross-examination or discovery style — will elicit little real information about the other participants' needs in settlement and, worse, may create an atmosphere of anger or defensiveness that shuts down the exchange of ideas or information, sometimes even resulting in breakdown of the mediation. Effective mediation counsel will ask open questions that allow others at the table to provide information about needs and interests that will later be useful in reaching a creative settlement.

Likewise, attentive listening without interrupting tends to encourage similar behaviour on the other side and moves the participants toward settlement more quickly. Counsel in mediation need to be prepared to acknowledge the interests and points of view of the other participants, which does not necessarily mean accepting the legal positions or solutions proposed to resolve the dispute. Separating understanding from agreeing is a useful concept, as it can aid in developing a productive working climate. At the same time, counsel can and should put forward the client's needs firmly and in a forthright manner.

Another element of style is how forceful counsel wants to be in mediation on behalf of his or her own client. This will depend primarily on the client's needs going into mediation. Confident or settlement-minded clients may prefer that the lawyer be conciliatory from the outset. This client may also take a more active and vocal role during the mediation. Anxious or timid clients, on the other hand, may need a lawyer who will take a strong stance, and may be less comfortable participating, particularly in the beginning. The role of counsel and client in mediation should be canvassed with the client prior to mediation. The same comments apply whether counsel are present at the mediation or are advising between sessions, and may indeed assist in deciding whether counsel will be present at mediation.

There are other duties falling on mediation counsel, such as assisting the client to be reasonable when potentially productive settlement proposals are received from other participants. This is one way a lawyer responsibly advises any client on bona fide settlement proposals, whether in litigation or mediation.

However, the momentum for settlement by agreement is greater in mediation because it is the goal of the participants. If counsel does not have a client seriously consider settlement at the right moment, the timing is lost and settlement will not result. Without settlement, the time and money spent in mediation will appear to be less than productive. The most likely result is client dissatisfaction and one or more of the participants may conclude that settlement is not possible in any circumstances.

Mediation counsel's role in assessing settlement may therefore need to extend further than when the trial is just around the corner and the client's motivation for settlement may be solely based on risks and expenses of going to court rather than on other underlying interests.

2. Withholding information: what does "full disclosure" mean in mediation?

Litigation counsel, as officers of the court, have a duty not to mislead the court. By extension, the same duty should apply to mediation negotiations, if for no other reason than that an agreement may be attacked and potentially set aside if there has been misrepresentation. More importantly, the goal of mediation — an agreement that is mutually interest-based — requires disclosure of all information that is relevant to informed, consensual decision-making. Settlement based on misrepresentation or less than full disclosure is unlikely to address the interests of all participants, since needed information is missing or even wrong.

A more specific question is what approach to take on production of documents if mediation clients have not been through the discovery process. Some mediators prefer to meet only after discoveries have been held. Unfortunately, this may seem contradictory to the client who wishes to resolve matters out of court in an expedient and hopefully less costly way. What then is counsel's best approach with respect to disclosure of documents and the client's interests and needs?

Initially counsel should ensure that the Agreement to Mediate addresses this question. Many agreements specify that full disclosure will take place, but do not define what full disclosure is. Are all documents needed, or only enough to establish the necessary information? Will the clients produce years of bank records or company reports, or will a summary suffice? The answer often depends to a large extent on the relationship among the participants.

If the participants are of similar levels of sophistication, and particularly if they have shared financial information and decisions throughout the course of their association, or if there is a high level of trust between the participants, they may feel no need to produce documents at mediation. They may be comfortable acting on the basis of their shared common knowledge, often summarized in documents that clients and counsel have prepared for mediation. There may also be situations in which, for any number of reasons, the participants do not wish to make full disclosure, and all participants are in agreement about this. However, counsel may want to be cautious about advising in these circumstances, and the Agreement to Mediate should set out that the participants have agreed that full disclosure need not take place.

Particularly if the matter is complex or highly litigious, counsel may want to discuss disclosure provisions with the other counsel prior to the mediation, either by telephone or in a preliminary planning meeting.

Such a meeting can also deal effectively with any other process-related matters that may enable the mediation to proceed more smoothly and efficiently. Mediation counsel may want to be proactive in arranging such a meeting, particularly if there is a suggestion from the mediator that an initial meeting would be useful.

3. What is the counsel's duty toward an unrepresented participant at mediation?

Presumably the duty is similar to that of counsel toward an unrepresented party at litigation: that is, not to take advantage of that party in any way. Similar to the judge in court, the mediator will presumably ensure that the unrepresented participant understands the process, is comfortable proceeding and has full opportunity to present his or her side of the story. The procedural guidelines set out in section 1 above apply, but even more so if a participant is unrepresented.

Above all, counsel cannot advise the unrepresented party about the law, and for counsel's own protection, he or she should do the utmost to ensure that the unrepresented participant obtains legal advice before signing any agreement. It may be at the stage of generating solutions that the mediator's job will be the hardest with the unrepresented party, and counsel should be willing to allow some process assistance from the mediator in this instance, as long as the assistance remains procedural and does not move into the substantive areas of agreement.

4. "Unfair agreements": what is mediation counsel's duty?

Counsel present at the mediation will usually discuss the terms of emerging settlement proposals in a separate meeting with the client during the mediation, either with or without the mediator present (often referred to as a caucus). This enables counsel and client to discuss privately counsel's legal opinion and the client's interests and needs, and to assess the costs and the risks of accepting or not accepting the proposed settlement terms. Usually by the time agreement has been reached, if the participants are ready to commit, so are their lawyers.

When counsel is not present at the mediation, however, the situation may be different. The participants may change their points of view or their perceptions of what they need during the mediation as a result of what they hear and discuss. Counsel has not been present to make this transition with his or her client. If the resulting agreement is "fair" within counsel's definition, there is usually no difficulty, but if he or she feels that the agreement is unfair, it can result in a stalemate with the client.

If the emerging agreement is unfair because of one party's inability to negotiate or lack of expertise, it is incumbent on counsel to assist the client in understanding the ramifications and discuss ways of remedying the situation that the client can bring back to the mediation. If the participants have unequal knowledge or negotiating skills that cannot be adjusted in mediation, a responsible mediator may suggest an adjournment to allow both participants to obtain legal or financial advice on a particular point. Counsel can be extremely useful in assisting the client to obtain the information or assistance needed and to return to mediation with a new or more confident approach.

If, however, the emerging agreement appears unfair in law, but is addressing the participants' needs or principles that are important to them, experienced mediation counsel will canvass the reasons, rather than automatically reject the agreement.

If after discussion the agreement is to proceed, counsel may want to ensure that an explanation is included in the written agreement, much as family law counsel would if drafting a child support order or agreement that differs from the federal guidelines.

If counsel is still uncomfortable, but feels that the client understands the ramifications and wishes to sign the agreement, he or she could consider taking the client's signature on the agreement, but also writing a confirming letter to the client setting out the advice that was given and the client's personal reasons for accepting the agreement. In an extreme case, counsel may want to propose that the client should get a second opinion before signing an agreement. All of these process solutions may assist creative mediation counsel either to develop safeguards that will make the agreement more acceptable, or to convince the client that some adjustment should be made.

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At present, there are no absolute answers to the issues raised here; these suggestions reflect my point of view only. Other mediators and mediation counsel may have different approaches, depending on their personal style, the type of training they have received, the nature of their clients, the circumstances in which mediation arises or the nature of the issues to be mediated. Much of any counsel's approach will come down to common sense in the circumstances. If the advising lawyer is clear about the differences between litigation and mediation, he or she will seek the most effective ways of reaching resolution for the client, whatever dispute resolution process is chosen.

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Joyce Bradley is a Vancouver lawyer with extensive mediation experience in business, personal injury, wills and estates and family law. She is a founding member of the B.C. Chapter of the Society for Professionals in Dispute Resolution (SPIDR) and a member of MDABC and FMC. She serves on the B.C. Mediation Roster and the panels of numerous service providers, and is an FMC Certified Comprehensive Mediator.