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Many of the comments about barristers in mediations given above are of the hackneyed comic book variety, which is all fairly tedious. The silliest and least competent behaviour I have observed in mediations was from from solicitors (without counsel) - does that mean solicitors must be regarded as bad mediators or better off dusting off conveyancing files? At the same time, I have seen counsel who were clearly not in their natural territory and who have not performed well. In addition to that, I have experience of one or two mediators charging £5k per day who were utter lemons. My client would much rather have had an inexperienced barrister mediator (or indeed a non-lawyer mediator) who had some presence and an ability to communicate with the parties with a proper understanding of the issues.

So unsurprisingly it is horses for courses rather than chippy comments from one side of the profession or the other trying to stir up unnecessary tension.

There is of course a difference between being a good advisor on one hand, advocate on the other, and finally, a negotiator. But the most important thing for whoever is the lawyer is an ability at effective case analysis (with an open mind) and to be able to advise the client as to the merits of the proposal on offer against the viability of litigation. That requires judgment whether the client is in person, with a legal exec or some other variety of lawyer. Some (especially poor mediators) have a view towards mediation that agreement should be reached for agreement's sake - that is not in many cases in the client's interests.

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