SHOULD I TAKE MY ATTORNEY WITH ME TO MEDIATION?

One of the questions I get from acquaintances going to mediation for the first time is whether they should take their attorney with them to the session. To answer their question, I typically go over several considerations, including mediation ethics, expert consultation and cost.

First and foremost, the ethical standards for mediators require that they conduct mediation based on the principle of self-determination. That is, the mediator must assure that it is the parties themselves who are making the decisions. If such assurance can be bet, then it doesn’t matter if a family member or an attorney or any other advisor accompanies the disputant. This means that the parties must be able to consult with professionals that may be attorneys or accountants or other advisors.

So should such disputants bring their attorney or accountant with them to the mediation? That introduces the consideration of cost. Fortunately, cell phones make consultation during the mediation cost effective. By advance preparation, a disputants can arrange to call their advisors when and if needed during the session.

Meeting with an attorney or other advisor in advance of the mediation can be very helpful. The attorney can assist the disputant develop a better understanding of the issues and possible solutions. A recent trend is the preparation of a mediation briefs, which is an informal document designed to present factual evidence and legal theories that support the party’s case. These are not designed to persuade the neutral mediator to side with the party’s position. To me, as a mediator, the real value is how the briefs can help the disputant be more organized and have a realistic understanding of their case and possible outcomes. Again, as a mediator, I do not allow myself to be influenced in any way by the document, as I am not the decision maker. The parties themselves are.

A recent article in the Los Angeles Times reveals that in California civil courts at least three-quarters of cases have at least one party who is representing themselves. In response, the courts have expanded their efforts to help self-represented litigants. In the article, one person pointed out that financial resources are not always the explanation. For example, young adults are accustomed to learning skills from YouTube and other online sources.

So, my answer is usually, “No, you don’t need to bring your attorney with you to the mediation because you will be making the decision, but you definitely do need to be able to access professional advisors as you may need their advice to make the best decision.”