Involving Collaborative Lawyers in the Mediation Process

by Marie Nickle LL.B LL.M AccFm

One of the problems with the mediation process is that the independent legal advice lawyers are not involved in the thought processes or the discussions taking place in the mediation sessions.  The option generating that takes place in mediation involves in-depth thought and discussions of the practicalities of any given arrangement, being the things that make sense in the day-to-day lives of the parties.  Nor have the lawyers been involved in the discussions that take place concerning the parties’ concerns and values and how these expressed concerns and values play a considerable part in arriving at agreements.  The mediation process concentrates on many things for the parties, including legal obligations and entitlements.  However, the ILA (Independent Legal Advice) lawyers are advising only on legal obligations and entitlements after completion of the mediation and often, agreements reached are scuttled, leaving parties frustrated and angry at having paid for a process that didn’t deliver.  The result is that mediation is brought into question as a viable alternative dispute mechanism.  As well, the reputation of the mediator is not well served.

As an example, I was involved in a case, giving ILA to a wife on a comprehensive mediated agreement.  The mediation had taken place 3 years earlier by a very well known and respected mediator.  The parties, although advised by the mediator to obtain ILA, did not.  Instead they procrastinated and lived within the spirit of the mediation report for 3 years, at which time circumstances dictated the need to conclude and turn the terms into a legally binding document.  In my conversations with the ILA lawyer for the husband, he(the lawyer) proceeded to malign the mediator, offering comments to the effect that the mediator should face consequences for assisting the parties with what he viewed to be an imbalanced agreement in my client’s favour.  He (the lawyer) was not prepared to “allow” his client to sign the agreement.  The result was that the negotiations had to start afresh between us on behalf of the parties.  Both parties felt they had wasted their money in the mediation process and neither were prepared to recommend it.

A way to resolve this is to have the parties represented by Collaboratively trained legal counsel at the outset of the mediation process.  The lawyers do not necessarily have to be involved in every meeting, although this would be ideal.  At a minimum, they would be available to provide their respective clients with legal advice and input along the way, ensuring no surprises at the end of the process.

The cost is still less than a court process, which is the only meaningful comparison when discussing the cost of any resolution process.