Do barristers and mediation mix?

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Some barristers risk perpetuating adversarial stereotypes. But there is still a place for counsel in the mediation process.

Are barristers a useful tool in mediation, or does too much time have to be spent calming their egos before the mediation can get going?

This question was touched on briefly at a mediation debate I attended a few weeks ago, and it sparked a bit of a storm at the time on Twitter.

I tweeted a comment by Frances McCarthy, a hugely respected and experienced personal injury lawyer and mediator, that the problem with some mediations is actually the barristers.

McCarthy said that while the parties go to a mediation with the mindset that they want to settle the case, sometimes the barrister’s attitude is that they are there for a fight; and valuable time has to be spent calming their egos before the process can really get started. She felt that some mediations would go better if the barristers weren’t actually there at all.

Needless to say, the comments did not go down well on Twitter with the barristers, and some top PI counsel including Gordon Exall (@CivilLitTweet) and Gerard McDermott QC (@McDermottQC) used their 140 characters to make convincing arguments in support of their barrister brethren; the gist being that (claimant) barristers are very successful in increasing the value of settlements; settlement is a laudable aim but not at any cost; and barristers recognise that there is simply no room for ego in negotiations.

Why, then, does this perception exist that barristers and mediation don’t mix? McCarthy’s comments were by no means the first time that I have heard criticism of the way barristers approach mediation. Is that criticism fair?

I asked mediator Tim Wallis, who organised the debate event, what his view was on the topic. Wallis had some interesting examples of barristers behaving badly, such as one who spent 10 minutes arguing about the desirability of the rooms available and complaining that his opponents had unfairly ‘bagged’ the best room; and another who resorted to actual ‘fisticuffs’ quite early on in proceedings.

But these examples are from a good 10 years ago.

These days, Wallis says, most barristers are quite mediation savvy - even if they have not had mediation training - and some are extremely skilful in knowing exactly how to get the most out of a mediation.

But Wallis acknowledges that occasionally ‘I find that I am dealing with a barrister who will not settle down until they have asserted their authority in some way’, and sometimes where parties choose not to bring counsel, he hears solicitors and insurers citing a desire to avoid ‘grandstanding’ as the reason, or a belief that barristers ‘get in the way’.

Another longstanding mediator, Philip Hesketh, tells me that when parties ask him whether they should bring counsel along to a mediation, he responds by asking whether their barrister is a skilled negotiator – if so, bring them along; but if not, then what will they be there for?

Hesketh observes that counsel will often approach mediation in an ‘adversarial’ way that is not suited to the mediation methodology; and he has seen occasions where a barrister treats the mediation as if it were their own case, and rejects offers before the client has even had a chance to speak.

The bar has come a long way in how it approaches mediation, and many barristers have become adept at moulding their traditional courtroom skills into a new shape that better serves their clients at mediation.

But some barristers out there are clearly still failing to adapt their approach; and they risk perpetuating the stereotypes that can sometimes make clients question whether they need to use barristers in mediation at all.