Attorney representation in ADR can be a helpful tool for both parties. The role of attorneys in mediation is to provide legal guidance and expertise, which are often needed in areas where different laws apply to mediators than those that apply to courts. However, there are also times when its better not have an attorney involved at all.
Professor Rau argues that attorney representation in mediation helps both sides to reach an agreement. He describes attorney involvement in mediation as a “crucial tool that not only helps the mediator, but also helps the parties.”
In his article “Lawyers’ Role In Mediation: A Critical Tool That Not Only Helps The Mediator But Also The Parties,” Professor Alan Scott Rau of Tulane University writes, “The role of lawyers in mediations has been changing over time…[and] today’s attorneys are increasingly involved with ADR [alternative dispute resolution].”
Professor Rau describes attorney involvement in mediation as “a crucial tool that not only helps the mediator, but also helps the parties. The presence of an attorney can be very helpful in helping people understand what they are agreeing to and how it may affect them later on.”
The presence of attorneys can also be helpful for mediators who are trying to reach a settlement with parties that do not have legal representation. In these cases, it is often easier for attorneys (who are familiar with how contracts work) to help mediate because they understand both sides involved in any given dispute.
The biggest benefit of attorney representation in ADR is that attorneys are familiar with the process and can help parties move more quickly. They have been through it before and know what is required. They can guide parties through the process and explain why certain steps are necessary or why other steps should be taken differently.
For example, if you need to file a claim prior to mediation, your attorney will help explain how this affects your case. If there are issues that arise during mediation, such as an objection from another party or an issue with timing (such as asking for extensions), an attorney can also explain how those issues affect your case moving forward as well as whether they may require further legal action on behalf of yourself or someone else involved in the dispute resolution process (such as mediation).
In some cases mediators may be reluctant to seek the assistance of attorneys for fear of upsetting parties who are trying to remain amicable in the process.
Mediators should be more willing to use attorneys, but it is important that they do not allow themselves or others involved in ADR processes to feel threatened by using an attorney. Mediators should not be afraid of using an attorney if doing so will help achieve resolution at a faster pace or have better chances for success.
Attorneys can help parties understand the legal implications of their dispute. This is especially important when there are complex legal issues involved, like how to determine whether someone is entitled to damages for pain and suffering caused by an accident that occurred in a parking lot.
Attorneys also help parties understand the process of ADR and what it means for them as individuals or as part of a business when they are faced with a conflict resolution issue.
The role of attorneys in ADR is a delicate one, and it is important for mediators to take this into account when discussing the pros and cons of having them involved. Others have raised concerns over whether or not parties might be upset if they know that lawyers are involved in the process, but there are also studies suggesting that attorneys can be helpful tools for mediators as well as parties who resolve disputes through mediation. If you want more information about this topic, we encourage you to visit our Legal Information website at law.cornell.edu/find-legal-information/.
Charkoudian, L., Eisenberg, D. T., & Walter, J. L. (2019). What works in alternative dispute resolution? The impact of third‐party neutral strategies in small claims cases. Conflict Resolution Quarterly, 37(2), 101–121. https://doi.org/10.1002/crq.21264
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