Using a Lawyer in Mediation

Whether you should retain a lawyer or law coach to help with your case will depend on the nature of your dispute, your own time and ability to research the law on your own, and the availability of other advisers, such as accountants, business valuation experts, and so on.

CONSIDER USING A SELF-HELP LAW COACH

As discussed throughout this book, a law coach is a lawyer who does not represent you in your case but is willing to provide you legal advice as you handle the case on your own. The coach will charge you a fee only for the time spent consulting with you, and should help you educate yourself so you can do as much as possible on your own. Hiring a coach can be a sensible and affordable compromise between going it entirely alone and hiring and paying a lawyer to be involved in every aspect of your mediation.

There are many ways to use a lawyer or law coach in mediation. We’ve explained the various tasks a lawyer can help you with in earlier chapers. For example, a lawyer can:

• Tell you whether the law provides a remedy for your dispute.

• Help you identify the legal issues in your dispute and estimate what a judge or jury might award if you took your case to court.

• Advise you, during a mediation session or between sessions, about the legal consequences of various settlement options.

• Review the mediated agreement before you sign it to make sure it does not compromise any of your legal rights in ways you did not intend.

• Help you prepare your case for arbitration, if you choose to arbitrate after an unsuccessful mediation.

If you need more information about some legal aspect of your case, your best bet will usually be to look it up yourself.

1. What to Look for in a Lawyer

In trying to find the right lawyer or law coach to support your mediation effort, there are many factors to consider. Of course, you’ll want to find a lawyer you feel comfortable with. If the lawyer will handle your entire case, you will be spending lots of time together. Even if you’re hiring a law coach, your comfort level is still important—you want to be able to communicate with, understand, and trust your lawyer.

This section covers a few other considerations, including expertise, attitude towards mediation, and fees.

a. Is Special Expertise Required?

Some lawyers have experience handling a variety of legal issues, such as wills, divorces, business contracts, and injury claims. If your case involves a relatively small amount of money or property, a generalist like this may be just what you need.

But these days, the law can be so complex and change so fast that more complicated issues are usually handled by people who specialize in particular areas of the law. Specialists often charge a little more, but they are probably worth it, for two reasons: First, they won’t need to do as much time-consuming research, and second, you are likely to get a more specific answer from a specialist than a generalist could provide.

For example, if you believe you have been the victim of sexual harassment by your boss, you really should use a lawyer who specializes in representing employees in employment law cases and has some experience with sexual harassment cases. Similarly, if your case concerns a dispute with your partner in a small business, you should use a lawyer who specializes in issues of small business ownership.

b. Does the Lawyer Support Mediation?

To some extent, the type of lawyer you choose will depend on whether you want the lawyer to counsel you throughout the mediation or want only an initial consultation. The lawyer’s personality and attitude towards self-help law doesn’t matter much when it comes to giving legal advice, but it can make a world of difference if you want the lawyer to coach you on a continuous basis.

If you do need a law coach, you should make it very clear from the first interview that you want to work with a lawyer who understands and supports mediation. This means a lawyer who accepts that mediation sometimes involves compromise and that what you settle for in media­tion can be influenced by, but should not be determined only by, what the lawyer believes a judge or jury might give. For example, you might tell the lawyer you are interviewing that you will want him to help you prepare for your mediation, but you do not anticipate the need for him to attend the actual sessions. And you might also ask that he be available to review the anticipated written settlement agreement before you sign it.

There is always the risk that a lawyer who wants your business will claim to support mediation, when in fact her attitude is fairly negative. To probe a little deeper for hidden bias, ask the following questions:

• Has the lawyer ever worked with clients going through mediation? If so, what did the lawyer think of the process? Was it successful for the client? The way lawyers talk about their prior experiences in mediation often reveals whether they really support and respect the process, or think it’s a waste of time.

• Has the lawyer had any mediation training? There are two types of mediation training available to lawyers these days. One is training to be an actual mediator; the other is training in how to represent clients effectively in the course of a mediation. Both show an interest in mediation but the second type suggests a more serious profes­sional desire to help clients through the mediation process.

c. Fees

When you hire a lawyer to help you with mediation, make sure you understand how fees will be computed. Don’t expect any special price break because you are mediating; most lawyers will charge you their normal hourly rate. The key is to define, in advance, when and how the lawyer will help you. For example, if the lawyer says it will take three hours to advise you on the legal aspects of your case before the media­tion and another three hours to review and discuss any proposed written settlement, you’ll know that your bill will be six times the lawyer’s hourly fee (unless, of course, you call the lawyer during the mediation and ask for additional advice).

2. Finding the Right Lawyer

Don’t expect to locate a good lawyer just by looking in the phone book, consulting a law directory, or reading an advertisement. There’s not enough information in these sources to help you make an informed choice. Lawyer referral services operated by bar associations also won’t give you much to go on. Generally, these services make little attempt to evaluate a lawyer’s skill and experience. They simply supply the names of lawyers who have listed with the service, often accepting the lawyers’ own descriptions of their skills and specialties.

The best way to find a good lawyer is to talk to people you know who may have used the kind of lawyer you are seeking. This includes your personal network of friends, relatives, coworkers, and members of your church, synagogue, book group, or bowling league. If someone you know and respect can recommend a lawyer who helped with a legal problem that’s similar to yours, you are probably on the right track. Of course, a friend’s or colleague’s satisfaction with the work of a particular lawyer is no guarantee that you will also be satisfied, but it’s a lot more to go on than a flashy advertisement on the back cover of the local phone book.

Other good resources are people in your community involved in the type of activity that resulted in your dispute. For example, if you want a lawyer who specializes in small business ownership disputes, call the director of the local small business council and ask for names of three or four lawyers who do that kind of work. If you do not have a business council or similar group in your town, then pick some successful small local businesses and ask the owners or managers who they use for legal advice

You may also want to talk to professional people in your community who have frequent contact with lawyers and can make informed judg­ments about the quality of their work. For example, by speaking to your banker, accountant, insurance agent, or real estate agent, you can prob­ably develop a short list of lawyers known for their work in these areas.

Once you have the names of several lawyers, it’s time to do a little research. A good source of information about lawyers is the Martindale­Hubbell Law Directory, available at most law libraries, some local public libraries, and online at www.martindale.com. This resource contains biographical sketches of most practicing lawyers, including information about their experience, specialties, education, the professional organiza­tions to which they belong, and the cases they have handled. Many firms also list their major clients in the directory—good indication of the types of problems these lawyers have tackled. But don’t be overly impressed by the length of a particular lawyer’s entry—lawyers purchase the space.

With the names of several good prospects, you can begin meeting and interviewing some lawyers. If you tell lawyers in advance that you are shopping around, most will be willing to speak to you for a half hour or so at no charge so you can size them up and make an informed decision. Of course, this is far more appropriate if yours is a large complicated mediation for which you will need considerable legal help than if it’s a much smaller dispute for which you want only an hour’s legal help. In this situation, most local lawyers will do fine, and you should expect to pay for their time.

B.