For many people, mediation with lawyers present is a contradiction in terms, as in "if we have a mediator, why do we need lawyers?" In fact, mediation without lawyers present is the dominant form in Massachusetts family law practice, though not in commercial mediation generally here, or even in family law elsewhere. While clients who choose to mediate without lawyers in "the room" (in quotes, because much mediation with lawyers "present" involves "caucus-style" mediation, wherein the mediator shuttles between the parties, who are in separate spaces), many do, and all should, have lawyers with whom to consult between sessions.
But one of the attractions to mediation for clients is the desire to avoid the distortions in their own desired messages and the potential for exacerbation of tensions that comes with what otherwise be perfectly effective and well-intentioned advocacy by lawyers. Some people would rather just speak for themselves. Another motivation for non-lawyered mediation is that people perceive that they will more truly "own" their agreements if they are organically involved in the negotiations to close them. Finally, many clients fear that the cost savings of mediation will be negated, or at least undermined, by having lawyers present. (While true that lawyers add cost, they also add value in ways that many clients cannot anticipate in advance, when poised to enter into the sometimes mystifying word of family law.)
Two additional advantages for clients to enter into mediation without their lawyers on site are pacing and understanding. Agreements that are the product of direct party-to-party negotiation tend to evolve at a slower and more deliberative pace, often resulting from periodic (1- 2 hours) sessions, paced out over the course of other life events. As any divorce lawyer would confirm, coming to grips with family law issues is usually part of a larger emotional process. People who are immersed in the shock/anger/grief/confusion of the early days of separation (and for some, not so early) need time to process the most intense personal crisis of their lives to date, and making prompt decisions at the expense of deliberative ones can result either in buyer's remorse (making a "bad" deal to get out of the discomfort of an unsettled situation) or being blinded/hindered by the emotional moment so as to be unable to recognized a "good" deal because of the confounding influence of negative emotions.
Mediated agreements that do not involve the "crutch" of having a lawyer present to formulate and articulate "positions" and demands, may be made with greater understanding for the people who must live the deal. Especially if these clients are consulting with their lawyers between sessions, they have the ability to discuss their own interests in their own way, while still gaining clarifications, nuances and strategic guidance that help shape the ongoing process. Yet, they have the time to question, to ponder, to re-think and to re-shape a settlement at a pace that may increase understanding and appreciation of the stakes, the concepts and the solutions.
But,there also advantages to mediating with lawyers present. I will consider this in another blog post.