Talking to a supervisee today about a case where mediation seems likely to end set me thinking (again as I spend time thinking about some very exciting things!) about not just legal information as given in mediation but also about legal advice as given to an individual client. A mediator’s legal information is neutral. It is a statement of what the legal position is or may be without any of the weighting which attaches when we select a particular element as the platform for a legal client’s ride into a litigation battle. As a mediator, when there are two possible takes on an issue (or even more), I can say what they are. I can discuss the pros and cons of each. What I can’t do is even hint at what might be the best option for either client. I can however explore with them both together the outcomes of various courses of action.
The most common reasons for my mediations ending without an outcome are couples taking the mediation discussions further in direct negotiations and settling without the need for any further assistance, clients failing to deliver financial disclosure at all or remotely up to scratch and then the mediations which founder on the rocks of very different legal advice.
Now those last beg a very obvious question. It’s clear that only one of two extreme views on a particular issue will emerge the winner if a judge decides. Indeed the probable outcome is that neither will win the day completely. The people who will pay the cost, both financial and emotional, of battling on are the advised, not the advisers.
This isn’t to suggest that it isn’t a solicitor’s duty to advise a client. I’m a passionate advocate of mediation clients taking legal advice in parallel with the mediation. It is however to question who exactly gains by encouraging a client to pin all on pursuing a course of action which is definitely in the winner take all camp. It’s a great deal of responsibility to bear for an adviser. It’s a high cost to pay for the client, win or lose.
When I still practised as a lawyer, I firmly believed that my job, when in private with my client, was to ensure that he or she appreciated the strength not only of our potential arguments but also the merit (or not) of the counter arguments from the other side. Clients have to know the risks. They are the ones who pay in every sense. I am professionally obliged to give neutral legal information. My personal belief is that lawyers should aim to deliver just that to their own clients as much as possible. I’m not talking about whatever armour you don when jousting with the other side. However your clients need to know the full potential risks and benefits before they enter the fray.Share: