Aggression around the mediation table can be counter-productive and damage your client’s chances of success, a leading QC has warned.
Bill Wood, vice-chair of the Civil Mediation Council, said he had experienced cases where the two lawyers involved were more angry than the clients. Wood told an event organised by mediation firm JAMS International at magic circle firm Linklaters that some litigators still seek to obstruct mediation.
‘It is the clients’ dispute,’ he said. ‘[Lawyers] are entitled to be cross but advocates should not lose it – excessive aggression can harm your clients’ interests.
‘I bridle when I take an offer into a room and the lawyer says "no I won’t accept that" without asking anybody.’
Wood, a Brick Court barrister and JAMS panel member, said he had seen lawyers tear up offers in front of their counterparts, and in one case flourish their entry in Legal 500 noting their ‘belligerent character’.
Katie Bradford, partner and head of property litigation at Linklaters, denied that litigators were obstructing mediators but said some clients demanded their lawyer act unreasonably.
‘I’ve heard the criticism that lawyers are acting as gatekeepers, but I truly believe most commercial litigators are explaining the options and sometimes clients are not taking them,’ she said.
‘Quite often they want their lawyer to go in there and bite the head off the other side. That’s the client’s prerogative. It may appear aggressive, and the other side and mediator might not like it.’
Craig Pollack, head of litigation at international firm SJ Berwin, said there was unease among lawyers at handing over a complex case to a mediator who has only ‘two or three days’’ preparation.
Wood said parties were unwilling to fund mediators for more than seven or eight hours, no matter how complicated the case.