Why do I need a Lawyer?

Benefit of Lawyers in the Mediation Process

A legally enforceable resolution requires the participation of persons who are knowledgeable in the legal rights of the parties, the legal options available to them and the ability to write them up in a legally effective manner.

Lawyers bring these qualities to the negotiation table, and additionally act to protect their client's interests by fully framing the issues, ensuring that there has been full discovery of relevant information and authorities, defining the settlement range, advocating for an outcome which is thorough and in their client's interests, and then ensuring that the written outcome is reflective of the agreements reached and fully enforceable.

Dangers of Mediation with No Lawyers Present - the "Non-Representation Model". This is the riskiest of contexts in which to attempt a full resolution of legal issues. Among the risks assumed by the parties are:

A party may not disclose all facts and information relevant to the issues at hand
A party may not know what facts and information are relevant to the issues
The parties may not know their legal rights and obligations, which in fact define the parameters of the resolution
The parties may come from a background of conflict and there may be an imbalance of bargaining position by superior knowledge, verbal ability, or forcefulness expressed through threats or intimidation
The parties may be obliged to meet in the same room and confront one another, with the attendant discomfort adversely affecting their ability to evaluate and negotiate in their own interests.
There is no one present to interpret or translate legal concepts or language from lay terms into legalese, or legalese into lay language
A non-lawyer mediator may not be legally trained or knowledgeable in the issues at hand - issues may be easily overlooked or not dealt with fully or appropriately
A non-lawyer mediator cannot legally draw up binding documents to effect the settlement, if one is reached, as to do so would constitute the practice of law
Even a legally-trained mediator ought not draw up legally binding documents to effect the final settlement, as to do so could pose a conflict of interest in fact or in the appearance of representation of either or both the parties. There could be a conflict between the accuracy of the papers as drawn and the substance of the agreements attained. Little could be later said to dissuade a court from accepting the parties' impressions that the mediator who drew up final papers represented them either or both of them, or at least appeared to do so. The settlement would lack finality, and the parties would then be exposed to the cost of (re)litigation.

Mediation with Not All Parties Represented - Watch Out! This model possesses the shortcomings of the non-representation model for the party without counsel; but is more problematic in that it invariably creates an incalculable imbalance of power. The disadvantaged person may not even recognize the fact at the time, but when the realization hits, it will probably be too late. Unilateral mistake is not a basis to void an agreement. And for the prevailing party, any momentary advantage gained could prove to be short-lived, as they would have only earned the right to defend in court the advantage gained -- with all the resultant cost and delay associated with that. Apart from the mediation session itself, a party representing oneself invariably increases the cost of mediation as they may expectably contact the mediator before and after the session seeking legal guidance on procedure, rights and obligations, as well as the steps to finalize the agreement with the court.

Mediation with All Parties Represented - Best of All! This is the optimum environment in which to attain a binding, enforceable settlement. The process may seem contentious at times, but that is the nature and the strength of the process: to fully expose and develop all legal issues existing between the parties, so that a complete and final resolution may be attained. In some types of litigation, such as Family Law, new issues may arise later. Even in those cases, the future issues may be fewer in number, smaller in magnitude, and will benefit from having a built-in dispute resolution mechanism.

One of the greatest benefits of having representation in mediation is the decreased likelihood of unilateral or mutual mistake, which result alone brings a heightened degree of completeness and finality to the resolution. Further, if an issue is omitted or the resolution is unclear or incomplete, the lawyer will know just what to do to resolve that issue by presenting and negotiating it with the other lawyer, or seeking further mediation, arbitration or judicial assistance as required.

In every case, it is the lawyer's job to see that all the issues are discussed and included, to ensure a full exchange of information, that an equitable balance is attained for the resolution to stick, and that the necessary papers are correctly drafted and submitted to the court. Lawyers participate in mediation just as the parties do - with the intention of negotiating in good faith, to attain "a complete and enforceable resolution of the competing interests of parties to a legal proceeding, in a private and cost-effective manner."

If you wish to Mediate and do not have a lawyer..... This is the day and age of "Unbundled Legal Services" Many lawyers, including those listed on the King County Collaberative Law Website, are willing to work with you and appear with you at mediation sessions without the necessity of formally appearing on your behalf in the full legal proceeding.