An Attorney's Guide To Mediation at CMC

The role of the attorney in mediation differs greatly from that of the attorney in litigation.

In a mediation session, the attorney plays the role of counselor for his or her client. Rather than presenting an argument, the attorney is asked to allow the client to speak for him/herself, and to be present to support and advise the client throughout the process.

Keep in mind that both sides must be able to communicate with each other. The mediation process is geared toward reaching a workable agreement for both parties. The attorney should encourage his/her client to enter the mediation to try to work with rather than against the opposing side.

The mediators function as neutral facilitators, and they will not make decisions for the clients, or give legal advice, or lead either party in any one direction. The mediators help each client to communicate with one another, so that they can hear each other's concerns. The mediators aid the clients in identifying common issues, and in developing possible solutions to these issues. The mediators then help the clients to work through the solutions, finding those that are practical for both parties. Finally, the mediator assists the parties in drafting the mediated agreement, which will become a binding contract (or, if signed by a judge, an enforceable order) between the parties.

The attorney is encouraged to help the client review the mediated agreement before signing the contract.

Attorneys are welcome at mediation sessions, unless asked by their client to withdraw. If an attorney is unable to attend a session, s/he should arrange a method of communication with the client if the attorney's advice is needed during the session. Cell phone are sometimes used.

The client can also request that she be able to consult her attorney before signing the agreement. At the beginning of the mediation, the mediators will ask if the participants are able to sign if they reach an agreement. At that time, the client should inform the mediators of the need to confer with their (absent) counsel before signing.