Reposted from Slaw.ca November 8, 2024 with permission
Professor John Lande has just published a terrific article “Theory and Practice of Mediation Representation”. He has also posted a summary here. Professor Lande acknowledges that there is much more written about how to mediate (as mediator) than how to represent clients in mediation (as counsel). Given that it is very common for lawyers to support clients in mediation, he gathers the best existing literature on the subject and presents both a theoretical framework for analyzing mediation representation and practical techniques for lawyers to use. There are helpful tables and checklists describing tasks for both lawyers and mediators. Supporting clients in mediation is a very complex process so the list for lawyers is very long.
The article also recommends emphasizing this key role in law school education. This includes instruction about how lawyers can work well with clients (something that was definitely missing in my law school experience!). (Note 1)
I highly recommend this article to all legal professionals supporting clients in mediation.
That said, the article assumes a full representation approach i.e. that the lawyer represents the client in ALL of the tasks on the list from beginning to end. However, this approach also applies to the critical role played by legal professionals who support clients in mediation through unbundled / legal coaching services. (Note 2)
Individual clients may not be familiar with mediation. Affordable, unbundled legal services will encourage clients to select mediation and help them to navigate through the process. Anecdotal feedback from members of the BC Family Unbundling Roster confirms that mediation support is one of the most common types of unbundled/legal coaching requested by family clients.
For example, a client may decide to participate in mediation on their own AND seek support from a lawyer in a legal coaching role. The lawyer could provide education about the mediation process, help the client identify interests and goals, advise on legal issues, assist with preparation for the mediation and be available for remote coaching during mediation. Many, but not all, of the items on the “Attorneys in Mediation” checklist still apply and serve as a menu of options for the client.
This resource may assist both legal professionals and clients to combine mediation and unbundling/legal coaching to everyone’s benefit.
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Note 1: Professor Lande has written a separate article on this topic: Law Schools Should Substantially Increase Instruction in Mediation Representation
Note 2: I use “unbundling” to refer to legal services provided in a way different from “full representation”. That can mean taking responsibility for individual tasks or issues OR taking a “legal coaching” approach to help a self-represented person deal with their legal problem.
Kari D. Boyle, Coordinator