Definition of Mediation and the Mediation Process: The Impact of Lawyers on Alternative Dispute Resolution (ADR)

How does the presence of lawyers affect the mediation process and mediations in general?

By on / Mediation

Definition of Mediation and the Mediation Process: The Impact of Lawyers on Alternative Dispute Resolution (ADR)

When there are lawyers involved, how can it affect the mediation process and mediations in general? You might guess that when one or both sides bring an attorney to a mediation, the process would become more contentious and adversarial, with impasse more likely, than if the parties worked solely with a mediator.

That conventional wisdom is contradicted by negotiation research by professors Jean Poitras of HEC Montréal; Arnaud Stimec of the Université de Nantes, France; and Jean Francois Roberge of the Université de Sherbrooke in Canada. In a study of conflict management and workplace disputes handled by a professional mediator in Québec, Canada, mediations conducted with attorneys present were just as likely to be settled as were those without attorneys present. More good news: the presence of attorneys didn’t significantly slow down the mediation process, affect how fair parties viewed the process to be, or alter how satisfied they were with the negotiated agreement.


Download this FREE special report, Mediation Secrets for Better Business Negotiations: Top Techniques from Mediation Training Experts, to discover mediation techniques for selecting the right mediator, understand the mediation process and learn how to engage the mediator to ensure a good outcome from the Program on Negotiation at Harvard Law School.


The Process of Mediation Changes with Lawyers Present

A couple of difference did emerge.

First, when attorneys were present, parties viewed their mediators to be somewhat less useful.

Second, parties were less likely to reconcile with each other when attorneys were present.

Overall, though, the study finds some evidence that lawyers, contrary to their reputation, do not obstruct agreement in mediation.


Download this FREE special report, Mediation Secrets for Better Business Negotiations: Top Techniques from Mediation Training Experts, to discover mediation techniques for selecting the right mediator, understand the mediation process and learn how to engage the mediator to ensure a good outcome from the Program on Negotiation at Harvard Law School.


Negotiation Research Resource: “The Negative Impact of Attorneys on Mediation Outcomes: A Myth or Reality?” by Jean Poitras, Arnaud Stimec, and Jean-Francois Roberge. Negotiation Journal, 2010.

Related Mediation Article: Negotiating a More Satisfactory Divorce – Among the most contentious disputes conflict management specialists such as mediators face is a divorce mediation session. Issues are typically fraught with emotion and reaching negotiated agreements is often difficult. Dividing marital property, determining spousal support, and child visitation rights are just some of the areas of contention that mediators involved in divorce negotiations will have to tackle. Given the antagonistic nature of such a mediation, how do mediated divorce settlements compare with those imposed by judges in court? Negotiation research from Rachid Baitar of the Catholic University of Leuven and Ghent University in Belgium examined settlements in divorce cases that were handled by mediators compared with those handled by lawyers. 

Adapted from “Should You Bring Your Lawyer,” first published in the Negotiation newsletter, April 2010.

Originally published in 2012.

Comments

3 Responses to “Definition of Mediation and the Mediation Process: The Impact of Lawyers on Alternative Dispute Resolution (ADR)”

  • Fascinating that research concludes that the presence of lawyers does not affect whether ‘settlement’ is reached……so what purpose is there in having them in the room? Being present for the hours they are there must cost a fortune for the parties and so if settlement is just as likely with or without them…..?
    Interesting also that little ‘weight’ seems to be given to the fact that parties are less likely to reconcile with each other when attorneys are present…….so the sustainability of the resolution is less with them present as if they have not reconciled with each other as much as they would without lawyers, they are more likely to fall out again. Love the spin on this article to continue to try to justify the presence of lawyers in mediations. But we see through you….oh yes!

    Reply
  • Thomas W.

    Alan, perhaps the fact that the parties choose to have attorneys present says something about the level of trust in the room. If that level is lower, isn’t it likely that the chances of reconciliation are also lower?

    Reply
  • John C.

    Since this study was conducted in Canada, I can only speak of my experiences in the USA that are mixed. My further answer is “it depends” upon many circumstances vis-a-vis the mediation outcome with attorneys present. If the attorneys are cooperative and assist the mediator to facilitate a mutually agreed upon outcome, then I welcome their engagement in the ADR process. If not, and the attorneys plan to follow an “adversarial mediation” strategy with the attendant tactics then I do not welcome their involvement. Rather I state the rules of engagement at the outset of the session to respect the facilitative ADR process and to defer from presenting legal positioning or arguments.

    Reply

Leave a Reply