What lawyers do at commercial mediation
At commercial mediation, a lawyer typically:
- Prepares the confidential position paper or mediation brief
- Advises the client on the legal merits and realistic settlement range before and during the session
- Makes the opening statement on behalf of the client (if a joint session is held)
- Attends private meetings (caucus) with the client and mediator
- Reviews and drafts the settlement agreement or heads of agreement
- Provides real-time advice on whether a proposed settlement is acceptable
Should both parties have legal representation?
There is no requirement for either party to have legal representation. However, where one party has legal representation and the other does not, a significant imbalance can arise — particularly in complex commercial disputes. The mediator has an obligation to ensure the process is fair, but cannot give legal advice to the unrepresented party. If you are the unrepresented party in a matter where the other side has lawyers, seek at least a pre-mediation legal consultation on your position.
The difference between commercial and family mediation
Legal representation at commercial mediation is more common and less controversial than at family mediation. Commercial disputes typically involve larger amounts, more complex legal issues, and business entities rather than individuals. In family mediation, lawyers sometimes attend but often provide advice only before and after the session. See: can I bring a lawyer to family mediation?
Barristers at commercial mediation
For high-value or legally complex matters, barristers are sometimes retained specifically for commercial mediation. A barrister's advocacy skills and authoritative assessment of litigation risk can be valuable in persuading the other side (through the mediator) to settle. Some mediators are themselves senior barristers or retired judges — which often concentrates the minds of the parties on the realistic outcomes of litigation.
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