By: Roselle L. Wissler Published by: Fordham Urban Law Journal. Published in January 2009
Wissler reviews studies on the impact of representation on mediation experiences, including domestic relations mediations, small claims mediations, and employment mediations. There are concerns that, without representation, parties might not understand how mediation operates, how it fits in the overall litigation process, or the advantages or disadvantages of engaging in mediation. Wissler notes there are some difficulties in assessing mediation in isolation as it is often seen as part of an overall litigation or negotiation strategy.
Overall, the proportion of unrepresented parties in mediation was likely to be smaller than in all filed cases. Some mediations had additional aspects to consider when assessing the impact of representation. In some forms of mediation, participants had counsel but did not have representation within the mediation session. In other situations, such as in Equal Employment Opportunity mediation, the parties had representatives that were not attorneys.
Represented parties were not always better informed about the mediation process and did not always report a more favorable mediation experience. There was, however, a correlation between reported preparedness and reported satisfaction with the mediation process. There was no consistently reported difference between represented and unrepresented parties regarding whether they had thought the mediation was fair and the mediator was neutral. In domestic relation cases, representation increased the chance that a mediator would learn of domestic abuse. In domestic relations mediation, representation did not appear to affect the discussion of feelings and settlement options.
Unrepresented parties typically felt like they participated in their mediation more than represented parties, but there was no consistent difference in whether parties felt they had the chance to tell their side of the dispute. The presence of a lawyer neither increased nor decreased the contentiousness of mediation. How the lawyer interacted did make a difference – less adversarial and more cooperative behavior usually lead parties to view the process and outcome more favorably. The presence of a lawyer during mediation correlated with a lower rate of settlement in most studies.
The findings of the studies reviewed did not affirm the concerns about unrepresented parties; the impact of representation for parties in mediation was largely indeterminate. Wissler suggests that more research, however, should be done on the topic. To make sure that representation is the factor measured rather than any underlying party or case characteristics commonly associated with seeking counsel, researchers should randomly assign lawyers to parties participating in mediation. Wissler also points out that most of the studies reviewed are almost a decade old; lawyers may have become more adept at handling mediation over the last few years, and more recent studies should be conducted to measure this potential change.