When proceedings have commenced, parties will usually have lawyers attend mediation with them.

There can be challenges when lawyers are present, especially for non-lawyer mediators, such as:

• Expressly positional behaviour
• Cross examination requests
• Creating obstacles to settlement
• Acceptance of any deal to ensure settlement.

Lawyers, naturally, are advocates for their client’s legal position. They have a deep understanding of the facts. Lawyers are trained to assess, minimise and manage risk.

As mediators, we must acknowledge this and work with it. We are, after all, trained to find opportunities.

As a litigation lawyer and a mediator, I find if the lawyers are given the chance to lay their positions on the table, even if in a way similar to making submissions in court (provided it does not become counterproductive), we can then set boundaries within the process for the issues to be dealt with in a more future orientated way.

Having lawyers in the room can also be helpful. This is especially relevant when we reach negotiation and reality test options, and when assessing the cost implications of settlement against proceeding.